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ANNABELLE Clinton Imber, Justice.
This case arises from ongoing litigation tice. parties in both circuit and chancery court. This appeal is from a summary judgment by the circuit court and presents the question of whether the appellants, Jim R. Linn and Virginia Cheryl Linn, lost their right to refile claims in circuit court when they voluntarily nonsuited similar claims in the previous chancery court proceeding.
The appellees, NationsBank, as successor-in-interest to Boatmen’s National Bank of Conway, and Tom Nelson, a Boatmen’s employee, committed to provide construction financing loans to the Linns in April, 1995, for the purpose of building a bed-and-breakfast facility in Greenbrier, Arkansas. After construction of the facility had been completed, a dispute arose between the parties as to NationsBank’s obligation to provide permanent financing equal to eighty percent (80%) of the value of the bed-and-breakfast as evidenced by an appraisal. As a result of this dispute, the Linns discontinued interest payments on the construction loans, and NationsBank responded by filing a foreclosure action in the Chancery Court of Faulkner County in June 1996. In August 1996, the Linns filed a counterclaim in the chancery court action, alleging breach of contract, fraudulent misrepresentation, and negligence, arising from NationsBank’s refusal to honor an alleged oral agreement to provide permanent financing after construction was completed on the bed-and-breakfast. The Linns also requested that the counterclaim be severed and transferred to circuit court for a jury trial. NationsBank filed a reply to the Linns’s counterclaim, denying any liability for breach of contract, fraudulent misrepresentation, or negligence. NationsBank also requested that the Linns’s request for severance, transfer, and jury trial be denied.
In September 1996, the Linns filed a Chapter 7 bankruptcy proceeding in the United States Bankruptcy Court, Eastern District of Arkansas. On January 23, 1997, NationsBank obtained an order for abandonment and relief from the automatic stay in the bankruptcy proceeding, and on January 24, 1997, an order of discharge was entered by the U.S. Bankruptcy Court releasing the Linns from all dischargeable debts. On February 14, 1997, a decree was entered by the chancery court that granted the foreclosure. Paragraph seven (7) of the decree stated as follows:
That upon motion by the Linns pursuant to Arkansas Rules of Civil Procedure 41(a), the counterclaim filed herein by defendants Linns against plaintiff [NationsBank] should be dismissed without prejudice.
On February 9, 1998, the Linns filed a complaint against NationsBank and Tom Nelson in the Circuit Court of Faulkner County, which stated that it was “founded upon the same action non-suited by the Plaintiffs [the Linns] in Faulkner County Chancery Court on or about 2/13/98 [sic].” The complaint again asserted claims for breach of contract, fraudulent misrepresentation, and neghgence, and asserted new claims for breach of good faith and breach of fiduciary duty. NationsBank and Tom Nelson filed an answer to the Linns’s complaint and a motion for summary judgment, which asserted that the claims by the Linns in the present circuit court action constituted compulsory counterclaims in the previous chancery court action, and were barred by the doctrine of res judicata or collateral estoppel. The trial court granted the motion for summary judgment and dismissed the complaint on the basis that the claims raised by the Linns in the circuit court action were (1) compulsory counterclaims under Ark. R. Civ. P. 13(a) in the previous chancery court action; and (2) were barred by the doctrine of res judicata.
On appeal, the Linns contend that the trial court erred in granting NationsBank’s motion for summary judgment and dismissing their complaint under the doctrine of res judicata. In Adams v. Arthur, 333 Ark. 53, 969 S.W.2d 598 (1998), we stated the standard of review for a grant of summary judgment:
The law is well settled that summary judgment is to be granted by a trial court only when it is clear that there are no genuine issues of material fact to be litigated, and the party is entided to judgment as a matter of law. Wallace v. Broyles, 331 Ark. 58, 961 S.W.2d 712 (1998), supp. opinion on denial of reh’g, 332 Ark. 189 (1998). Once the moving party has established a prima facie entitlement to summary judgment, the opposing party must meet proof with proof and demonstrate the existence of a material issue of fact. Id. On appellate review, this court determines if summary judgment was appropriate based on whether the evidentiary items presented by the moving party in support of the motion leave a material fact unanswered. Id. This court views the evidence in a hght most favorable to the party against whom the motion was filed, resolving all doubts and inferences against the moving party. Id. Our review focuses not only on the pleadings, but also on the affidavits and other documents filed by the parties. Id.
Adams v. Arthur, 333 Ark. at 62, 969 S.W.2d at 602.
The Linns first assert that the trial court erred in granting summary judgment because the traditional elements of res judicata were not satisfied. The concept of res judicata has two facets. In Matter of Estate of Goston v. Ford Motor Co., 320 Ark. 699, 898 S.W.2d 471 (1995) (citing John Chesseman Trucking, Inc. v. Pinson, 313 Ark. 632, 855 S.W.2d 941 (1993)). Issue preclusion precludes further litigation in connection with a certain issue, and is limited to those matters previously at issue, which were directly and necessarily adjudicated. Id. The Linns correctly conclude that their claims in the circuit court action would not be barred under the issue preclusion facet of res judicata, as it is undisputed that the issues of liability raised in the counterclaim against NationsBank were never actually litigated in the chancery court action.
The claim preclusion facet of res judicata forecloses relitigation in a subsequent suit when:
(1) the first suit resulted in a final judgment on the merits;
(2) the first suit was based upon proper jurisdiction;
(3) the first suit was fully contested in good faith;
(4) both suits involved the same claim or cause of action; and
(5) both suits involved the same parties or their privies.
Bailey v. Harris Brake Fire Protection Dist., 287 Ark. 268, 269, 697 S.W.2d 916, 917 (1985) (citing Wells v. Ark. Pub. Serv. Comm’n., 272 Ark. 481, 616 S.W.2d 718 (1981)). Claim preclusion bars not only the relitigation of issues which were actually litigated in the first suit, but also those which could have been litigated but were not. Wells v. Ark. Pub. Serv. Comm’n., supra. However, we have held that the doctrine of res judicata does not bar a plaintiff from refiling a claim after he or she has exercised the absolute right to one voluntary dismissal under Ark. R. Civ. P. 41(a). Lemon v. Laws, 305 Ark. 143, 806 S.W.2d 1 (1991). In so holding, we concluded that the application of the doctrine of res judicata to a plaintiff’s voluntary dismissal under Ark. R. Civ. P. 41(a) would change the absolute right to a qualified right and create “two types of first-time non-suits: Those that could and those that could not be refiled.” Id. at 145, 806 S.W.2d at 2.
While acknowledging that Ark. R. Civ. P. 41 does provide for the voluntary dismissal of claims, the trial court nevertheless concluded that the principles of res judicata were applicable in this case, citing Shrieves v. Yarbrough, 220 Ark. 256, 247 S.W.2d 193 (1952); Golden Host Westchase, Inc. v. First Service Corp., 29 Ark. App. 107, 778 S.W.2d 633 (1989); and McDaniel Bros. Constr. Co. v. Simmons First Bank, 24 Ark. App. 106, 749 S.W.2d 348 (1988). However, those cases do not mention the voluntary dismissal of counterclaims under Rule 41. Thus, with regard to the circumstances in this case, they are inapposite and readily distinguishable. In Golden Host, supra, the counterclaim was dismissed with prejudice in the first action, and the McDaniel case dealt with claims that the plaintiff never pled when it filed the original foreclosure actions. See also, In Matter of Estate of Goston v. Ford Motor Co., supra; Martin v. Citizens Bank of Beebe, 283 Ark. 145, 671 S.W.2d 754 (1984); and McJunkins v. Lemons, 52 Ark. App. 1, 913 S.W.2d 306 (1996), in which the issue of omitted compulsory counterclaims under Ark. R. Civ. P. 13 has been addressed by this court and the court of appeals. Finally, Shrieves v. Yarbrough, supra, predates this court’s adoption of the Rules of Civil Procedure, and, therefore, does not address either compulsory counterclaims under Ark. R. Civ. P. 13 or voluntary nonsuits under Ark. R. Civ. P. 41. This case, however, involves the Linns’s assertion of a counterclaim in the first action and the voluntary dismissal of that counterclaim pursuant to Ark. R. Civ. P. 41(a). Under these circumstances, we agree with NationsBank that the applicability of Ark. R. Civ. P. 13(a) does not depend solely on the general principles of res judicata.
The Linns next assert that the trial court erred in granting judgment because the claims raised in the circuit court action were not compulsory counterclaims in the previous chancery court action. We disagree.
Rule 13(a) of the Arkansas Rules of Civil Procedure provides that:
A pleading shall state as a counterclaim any claim which, at the time of filing the pleading, the pleader has against any opposing party, if it arises out of the transaction or occurrence that is the subject matter of the opposing party’s claim and does not require for its adjudication the presence of third parties of whom the court cannot acquire jurisdiction. But the pleader need not state the claim if (1) at the time the action was commenced the claim was the subject of another pending action, or (2) the opposing party brought suit upon his claim by attachment or other process by which the court did not acquire jurisdiction to render a personal judgment on that claim, and the pleader is not stating any counterclaim under this Rule 13.
The purpose for this rule is to require parties to present all existing claims simultaneously to the court or be forever barred, thus preventing a multiplicity of suits arising from one set of circumstances. In Matter of Estate of Goston v. Ford Motor Co., supra; Bankston v. McKenzie, 288 Ark. 65, 702 S.W.2d 14 (1986).
There is no question that the claims at issue here arose from the same set of circumstances — financing arrangements for a bed- and-breakfast facility. The Linns alleged, in both the counterclaim filed in the chancery court action and the subsequent complaint filed in circuit court, that Tom Nelson told Ms. Linn on April 18, 1995, that NationsBank had agreed to make a construction loan and a permanent loan. They further alleged that the purported offer to provide permanent financing induced them to enter into the construction loan agreement with NationsBank, instead of obtaining financing with another lending institution. Thus, the facts relating to the claims between the parties originate in a single conversation and culminate when NationsBank commenced the foreclosure on the construction loan. The Linns’s claims arise directly from the financing transactions and a logical relationship exists between the foreclosure, the counterclaim, and the subsequent complaint. Wasp Oil, Inc. v. Arkansas Oil & Gas, Inc., 280 Ark. 420, 625 S.W.2d 397 (1983). See also, Adam v. Jacobs, 950 F.2d 89, 92 (2nd Cir. 1991) (the claims were compulsory counterclaims where “[t]he guarantees and the merger agreement were executed together and, by the plaintiff’s own argument, the parties would not have signed one without the other.”). We therefore hold that the Linns’s claims in the present circuit court action constituted compulsory counterclaims in the earlier chancery court action under Ark. R. Civ. P. 13(a).
The Linns further argue that their claims in the present circuit court action should not be barred even if they were compulsory under Ark. R. Civ. P. 13(a), because they were voluntarily dismissed without prejudice pursuant to Ark. R. Civ. P. 41. In considering this argument, we must examine not only the language of Rule 13, but also the language of Rule 41.
As quoted above, Rule 13(a) requires that any claim existing at the time of filing a responsive pleading must be asserted in that responsive pleading if it arises from the same transaction or occurrence that is the subject matter of the opposing party’s claim. Rule 13 does not, however, state whether a compulsory claim must be litigated in order to prevent a bar. In contrast, the plain language in Rule 41 clearly states that a defendant has the right to proceed on his or her counterclaim although the plaintiff’s action may have been dismissed, and that the provisions of Rule 41 apply to the dismissal of any counterclaim:
(a) Voluntary Dismissal: Effect Thereof
(1) Subject to the provisions of Rule 23(d) and Rule 66, an action may be dismissed without prejudice to a future action by the plaintiff before the final submission of the case to the jury, or to the court where the trial is by the court. Although such dismissal is a matter of right, it is effective only upon entry of a court order dismissing the action.
(2) A voluntary dismissal under paragraph (1) operates as an adjudication on the merits when filed by a plaintiff who has once dismissed in any court of the United States or of any state an action based upon or including the same claim, unless all parties agree by written stipulation that such dismissal is without prejudice.
(3) In any case where a set-off or counterclaim has been previously presented, the defendant shall have the right of proceeding on his claim although the plaintiff may have dismissed his action.
* * *
(c) The provisions of this rule apply to the dismissal of any counterclaim, cross-claim, or third-party claim.
Ark. R. Civ. P. 41. (Emphasis added.) As previously stated, we have held that after a counterclaim has been filed, a plaintiff may once voluntarily dismiss his or her complaint without prejudice to refile it within one year. Lemon v. Laws, supra. Similarly, we hold that under Rule 41, a defendant may once voluntarily dismiss his or her compulsory counterclaim without prejudice to refile it within one year.
For these reasons, we conclude (1) that the Linns timely asserted their compulsory counterclaims for breach of contract, fraudulent misrepresentation, and negligence in the chancery court action, and therefore met the requirements of Rule 13 for those claims; and (2) that the provisions of Rule 41 allowed the Linns to voluntarily dismiss those claims without prejudice to refiling them within one year. This conclusion is controlled by the language in Rule 13 and Rule 41 of the Arkansas Rules of Civil Procedure. Furthermore, this conclusion does not deprive Rule 13 of its efficiency, in that omitted compulsory counterclaims will still be barred in subsequent litigation. Thus, we further conclude that the Linns failed to assert their compulsory counterclaims for breach of good faith and breach of fiduciary duty in the chancery action, and therefore did not satisfy the requirements of Rule 13 for those claims. Consequently, we hold that the trial court properly dismissed, by summary judgment, the Linn’s claims for breach of good faith and breach of fiduciary duty. Flowever, with regard to their previously asserted claims for breach of contract, fraudulent misrepresentation, and negligence, we hold that the trial court erred in granting summary judgment and dismissing those claims, which were not barred by the doctrine of res judicata or by the compulsory counterclaim requirements of Ark. R. Civ. P. 13(a).
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ROBERT L. Brown, Justice.
The petitioners, Arkansas stice. (“Democrat-Gazette”), Arkansas Press Association, Associated Press, KFSM-TV, Morning News of Northwest Arkansas, and Northwest Arkansas Times (collectively, “the media”), have petitioned this court for a writ of mandamus-directing respondent, who is Juvenile Judge Stacey Zimmerman, to revoke her gag order on the press entered on May 18, 2000. We agree with petitioners that the gag order is too broad, and because of its breadth, constitutes a prior restraint on the press. We grant a writ of certiorari and direct Judge Zimmerman to modify her gag order in accordance with this opinion.
What gives rise to this original action for mandamus is the delinquency case brought by the State against Michael Nichols, age 12. Nichols allegedly was involved in an exchange of gunfire with Prairie Grove police officer, Sergeant Greg Lovett, on May 11, 2000. Both Nichols and the police officer were wounded. On May 17, 2000, Nichols was charged with attempted capital murder in juvenile court in State v. Nichols, Case No. J 2000-554 (Washington County Juvenile Court). The case was assigned to Judge Zimmerman. Following the shooting, a yearbook photograph of Nichols and his name were published in the media. Nichols’s parents were also identified, and the name and employment of the victim were published.
On May 18, 2000, juvenile proceedings began before Judge Zimmerman. This was Nichols’s first appearance in juvenile court. He was advised of the charge against him, and he pled innocent. The hearing was open to the public, and members of the media were present. At the beginning of the hearing, the judge orally issued a gag order without prior notice that she was going to do so. She ordered that (1) no information be released by the media in the Nichols case except what was stated on the record at the hearings, (2) no names or pictures of the victim and the victim’s family be disseminated in the media, (3) no names or pictures of Nichols or his family be disseminated in the media, and (4) no names or pictures of juveniles in the courthouse be broadcast or released by the media. The court order memorializing the oral gag order was entered at 4:03 p.m. on that same day and includes the following:
3. The Court hereby issues a gag order in this case and orders no names or pictures of the victim and victim’s family or the juvenile defendant and juvenile defendant’s family be published or disseminated in any manner. The only matters that may be published by the media are those stated on [the] record the (sic) in this court;
4. No pictures of the juveniles who are present in the Courts Building, or entering or leaving the Courts Building, shall be disseminated by the media.
After the judge’s oral gag order, a reporter for the Democrat-Gazette told a Democrat-Gazette photographer outside the courtroom that the judge had issued a gag order. Later that day, the photographer took photographs of Nichols’s parents outside the courthouse and of Nichols leaving the courthouse with a coat over his head and escorted by two police officers. The photographs were published in the Democrat-Gazette the next day.
On May 20, 2000, Judge Zimmerman held a second hearing on the Nichols matter. At that time, she orally modified her gag order to permit dissemination of pictures obtained by the media prior to her May 18 gag order. Her gag order regarding future photographs of the juvenile, the victim, and their families remained in effect. In modifying her order, she noted that she was within her statutory authority to restrict the dissemination of future photographs and stated that the public’s right to know events through the media must be “balanced with the confidentiality requirements and the spirit of the Juvenile Code.” This oral modification was memorialized in an order entered by the judge on June 2, 2000. That order stated in pertinent part:
3. The Court hereby modifies the Order of May 18, 2000 with respect to the publication and dissemination of the juvenile defendant’s name and the photograph of the juvenile defendant published before the May 18, 2000 detention hearing, as the Court cannot restrict the dissemination of the juvenile’s name and photograph published before the May 18, 2000 detention hearing.
4. The Court reiterates its prior Order of May 18, 2000 that no pictures of the juvenile defendant or any other juvenile who is present in the Courts Building shall be disseminated by the media, and no pictures of any juvenile entering or leaving the Courts Building shall be disseminated by the media.
5. The Court reiterates its prior order that no pictures of the defendant’s family or victim’s family shall be published or disseminated in any manner.
6. Juvenile Court staff, prosecutors and defense attorneys in the case are restricted from discussing the particular facts of the case with the media while case is pending.
The judge’s May 20 order also set a hearing for May 25, 2000, in response to a motion by Nichols’s attorney, to determine whether the Democrat-Gazette should be held in contempt of court for violating the judge’s gag order and further to decide the media’s motion to intervene in the Nichols proceedings.
On May 25, 2000, Judge Zimmerman conducted the show-cause hearing and heard testimony from witnesses for the Democrat-Gazette. Following the hearing, she held the Democrat-Gazette in contempt of court and fined the newspaper $100. Pursuant to a motion by Nichols’s attorney, she ordered that further proceedings in the Nichols case be closed to the public. Judge Zimmerman also denied the media’s motion to intervene and stated that their remedy for attacking the gag order was by petition for writ of mandamus to this court. Pier oral ruling was memorialized in a sixteen-page order entered on June 5, 2000. In that order, she reiterated that her gag order set out in her May 18 and May 20 orders remained in effect.
On June 6, 2000, the adjudication hearing for Nichols began. Prior to the hearing, Judge Zimmerman entered a handwritten order opening the hearing to the public. The order included the following:
1. Upon the Defendant’s request, the Court hereby opens the hearings to the public, pursuant to 9-27-325 ACA.
2. However, the Court’s previous order of May 20th shall remain in effect.
3. No tape recorders or photography shall be permitted in the courtroom.
4. The juvenile defendant’s case file is still sealed and closed to the public.
On May 31, 2000, the media filed a petition for writ of mandamus and for temporary relief or, alternatively, for an accelerated proceeding. By per curiam order dated June 6, 2000, this court expedited consideration of the mandamus petition but denied a temporary stay of the gag order. Arkansas Democrat-Gazette v. Zimmerman, 341 Ark. 525, 19 S.W.3d 1 (2000).
I. Writ of Certiorari
We first examine whether a writ of mandamus is the proper remedy for correcting a prior restraint of the media. The purpose of a writ of mandamus is to enforce an established right or to enforce the performance of a duty. Manila Sch. Dist. No. 15 v. White, 338 Ark. 195, 992 S.W.2d 125 (1999). A writ of mandamus is issued by this court only to compel an official or judge to take some action. Raines v. State, 335 Ark. 376, 980 S.W.2d 269 (1998). When requesting a writ of mandamus, a petitioner must show a clear and certain right to the relief sought and the absence of any other adequate remedy. Hanley v. Arkansas State Claims Comm’n, 333 Ark. 159, 970 S.W.2d 198 (1998). But a writ of mandamus will not lie to control or review matters of discretion. Saunders v. Neuse, 320 Ark. 547, 898 S.W.2d 43 (1995). In contrast, a writ of prohibition is issued by this court to prevent or prohibit the lower court from acting wholly without jurisdiction. Raines v. State, supra. While mandamus compels action, prohibition prevents it from occurring. Id. A writ of certiorari is appropriate when it is apparent on the face of the record that there has been a plain, manifest, clear, and gross abuse of discretion by the trial judge, and there is no other adequate remedy. Arkansas Pub. Defender Comm’n v. Burnett, 340 Ark. 233, 12 S.W.3d 191 (2000).
In the past, this court has issued a writ of mandamus, a writ of prohibition, and a writ of certiorari under different circumstances to void a prior restraint of the press by a trial judge. See Ark. Gazette Co. v. Lofton, 269 Ark. 109, 598 S.W.2d 745 (1980) (writ of mandamus); Brown v. Kimbrough, Judg., 263 Ark. 913, 568 S.W.2d 226 (1978) (writ of prohibition); Wood v. Goodson, 253 Ark. 196, 485 S.W.2d 213 (1972) (writ of certiorari). In Brown v. Kimbrough, supra, this court held that a petition for a writ of prohibition was the proper avenue of relief in a prior restraint case where the prosecuting attorney sought an injunction from the chancery court against the future sale of any “writing, picture, motion picture, films, slides, drawings, or other visual reproductions of obscene materials.” The chancery court had not acted on the injunction at the time that the petition for the writ was filed. This court concluded that prohibition was appropriate:
Our cases regularly recognize that prohibition will lie to prohibit a trial tribunal wholly without jurisdiction or one that is threatening to act in excess of its jurisdiction where the remedy by appeal is inadequate. Skinner v. Mayfield, 246 Ark. 741, 439 S.W.2d 651 (1969), and Bassett v. Bourland, 175 Ark. 271, 299 S.W.2d 14 (1927). Since there exists no remedy against the State to restore or grant redress to a person who has been deprived by prior restraint of his right to exercise freedom of speech and press for whatever length of time the prior restraint may exist, it follows that petitioners’ have no adequate remedy by appeal from such injunction issued in excess of the trial court’s jurisdiction.
Id. at 918, 568 S.W.2d at 229.
The Brown decision does not appear to be precedent for the case before us. In Brown, the chancery court had not acted. Here, Judge Zimmermán has already acted by issuing her gag order. Prohibition would not be appropriate under these circumstances, because this court cannot now prohibit the trial court from doing what has already been done. See Pike v. Benton Circuit Court, 340 Ark. 311, 10 S.W.3d 447 (2000).
In Arkansas Gazette Co. v. Lofton, supra, the Gazette challenged the circuit court’s gag order restricting the newspaper from referring to a criminal defendant as the “Quapaw Quarter rapist” in its articles. The Gazette asked this court to issue a writ of mandamus. In determining that the writ should issue, we stated that the judge’s restraint of First Amendment freedom of the press amounted to “judicial censorship which is beyond the jurisdiction of this or any court.” Id. at 111, 598 S.W.2d at 747. In determining that mandamus was the proper remedy, this court referred the parties to its reasoning in Commercial Printing Co. & Tosco v. Lee, 262 Ark. 87, 553 S.W.2d 270 (1977). In Commercial Printing, the trial judge had excluded the public and press from voir ¿¿reexamination of prospective jurors in a criminal trial by conducting the proceedings in chambers. The press filed a petition for a writ of mandamus in this court, but respondent argued that mandamus was not the proper remedy. We disagreed and pointed out that mandamus may be used to prevent irreparable injury. We said in Commercial Printing that this was not a matter “which addressed itself to the discretion of the trial court, for the court lacked the authority to prohibit the public and press from the voir dire examination — which is the sole question presently before this court.” 262 Ark. at 93, 553 S.W.2d at 273.
Finally, in Wood v. Goodson, supra, this court stated that the appropriate avenue for relief in correcting a prior restraint was certiorari. In that case the judge had ordered the press not to publish the jury verdict finding the defendant guilty for a period of time owing to additional charges awaiting trial against that same defendant. We held that the judge did not have the power to prohibit the news media from publishing information about what transpired in open court.
It is axiomatic, however, that writs of mandamus are not issued by this court to review or control a trial court’s exercise of discretion. Tyson v. Roberts, 287 Ark. 409, 700 S.W.2d 50 (1985). We hold that although the petitioners have asked this court for a writ of mandamus compelling the judge to rescind her gag order, a writ of certiorari is the more appropriate remedy because the issue before this court is whether Judge Zimmerman’s action in gagging the media was on its face a plain, manifest, clear, and gross abuse of discretion and in excess of her authority. See, e.g., Arkansas Pub. Defender Comm’n v. Bennett, supra. Thus, we will treat the media’s petition for mandamus as one for certiorari. See Childress v. Humphrey, 329 Ark. 504, 950 S.W.2d 220 (1997) (per curiam) (petition for mandamus treated as petition for certiorari).
II. Prior Restraint
We turn then to the merits of this case. The focal point of the petition is whether Judge Zimmerman’s gag order constituted a prior restraint of the media, which contravenes the First Amendment to the United States Constitution and Article 2, § 6, of the Arkansas Constitution. The United States Supreme Court has held that a prior restraint of the press cannot transpire unless it is “accomplished with procedural safeguards that reduce the danger of suppressing constitutionally protected speech.” Southeastern Promotions, Ltd. v. Conrad, 420 U.S. 546 (1975). This court has said in the same vein that “any restraint on the freedom of the press, even though narrow in scope and duration, is subject to the closest scrutiny and will be upheld only upon a clear showing that an exercise of this right presents a clear and imminent threat to the fair administration of justice.” Arkansas Gazette Co. v. Lofton, 269 Ark. at 110, 598 S.W.2d at 746 (citing United States v. CBS, Inc., 497 F.2d 102 (5th Cir. 1974)). We have said in addition: “While prior restraints are not unconstitutional per se, any system of prior restraint bears a heavy presumption against its constitutional validity.” Orrell v. City of Hot Springs, 311 Ark. 301, 304, 844 S.W.2d 310, 312 (1992) (citing FW/PBS, Inc. v. City of Dallas, 110 S.Ct. 596 (1990)).
While the United States Supreme Court has not held that the press or the public enjoys a constitutional right of access to juvenile proceedings, it has recognized that the public has a right of access to criminal trials for adults. See Richmond Newspapers, Inc. v. Virginia, 448 U.S. 555 (1980) (Burger, C.J., plurality opinion). The Court has also recognized that this right of access is not absolute, and if it is necessary to protect an “overriding interest articulated in findings,” courtrooms may be closed, or less restrictive, alternative restraints may be imposed. Id. at 581.
A seminal case on prior restraints is Nebraska Press Assoc. v Stuart, 427 U.S. 539 (1976). In Nebraska Press, a trial court had entered an order restraining the news media from publishing any admission or confession of the adult defendant revealed at a preliminary hearing or from broadcasting any facts “strongly implicative” of the defendant. The gag order prohibited everyone in attendance in the courtroom from “releasing or authorizing the release for public dissemination in any form or manner whatsoever any testimony given or evidence adduced.” The Nebraska Supreme Court affirmed the order as modified. In reversing the Nebraska Supreme Court, the Court noted that while the trial court acted out of legitimate concern in an effort to protect the defendant’s right to a fair trial, this concern must be balanced against the freedoms guaranteed under the First Amendment. The Court discussed previous prior restraint cases and noted: “The thread running through all these cases is that prior restraints on speech and publication are the most serious and the least tolerable infringement on First Amendment rights.” Id. at 559. The Court then held:
To the extent that this order prohibited the reporting of evidence adduced at the open preliminary hearing, it plainly violated setded principles: “(T)here is nothing that proscribes the press from reporting events that transpire in the courtroom.” ... The County Court could not know that closure of the prehminary hearing was an alternative open to it until the Nebraska Supreme Court so construed state law; but once a public hearing had been held, what transpired there could not be subject to prior restraint.
Id. at 568 (citations omitted). Under Nebraska Press, trial judges may not order reporters not to reveal lawfully acquired information once they have been admitted to the courtroom.
While Nebraska Press dealt with a criminal proceeding involving an adult, the Supreme Court has addressed a similar situation in juvenile court. In Oklahoma Publ’g Co. v. Dist. Court, 430 U.S. 308 (1977), the press attended an open juvenile delinquency detention hearing without objection from defense counsel. While there, they learned the defendant’s name, and as the juvenile was being escorted from the courthouse to a vehicle, a photographer took his picture. Thereafter, a number of stories using the boy’s name and photograph were printed in numerous newspapers. Additionally, radio stations broadcast his name and television stations showed footage of him. Subsequently, the juvenile court enjoined the media from “publishing, broadcasting, or disseminating, in any manner, the name or picture of (a) minor child” in connection with the proceeding. The Supreme Court of Oklahoma denied the petitioner’s writs of prohibition and mandamus, relying on Oklahoma statutes which provided that juvenile proceedings are to be held in private “unless specifically ordered by the judge to be conducted in public,” and that juvenile records are open to public inspection only by order of the court.
The Court specifically did not address the constitutionality of the Oklahoma statutes but, rather, considered whether the First and Fourteenth Amendments allow a court to prohibit the publication of widely disseminated information obtained at court proceedings which were open to the public. The Court noted that it had previously held that the press may not be prohibited from “truthfully publishing information released to the public in official court records.” Cox Broadcasting Corp. v. Cohn, 420 U.S. 469 (1975) (where rape victim’s name lawfully acquired, state could not impose sanctions on press for publication of the name). The Court struck down the order, holding that once the media had been admitted to the courtroom, they could not be prevented from revealing information about the case. In reaching this conclusion the Court said: “Once a public hearing had been held, what transpired there could not be subject to prior restraint.” Id. at 311. The Court added:
The court below found the rationale of these decisions to be inapplicable here because a state statute provided for closed juvenile hearings unless specifically opened to the public by court order and because “there is no indication that the judge distinctly and expressly ordered the hearing to be public.” We think Cox and Nebraska Press are controlling nonetheless. Whether or not the trial judge expressly made such an order, members of the press were in fact present at the hearing with the full knowledge of the presiding judge, the prosecutor, and the defense counsel. No objection was made to the presence of the press in the courtroom or to the photographing of the juvenile as he left the courthouse. There is no evidence that petitioner acquired the information unlawfully or even without the State’s implicit approval. The name and picture of the juvenile here were “publicly revealed in connection with the prosecution of the crime,” 420 U.S., at 471, !.. much as the name of the rape victim in Cox Broadcasting was placed in the public domain. Under these circumstances, the District Court’s order abridges the freedom of the press in violation of the First and Fourteenth Amendments.
Id. at 311-312.
Next, in Smith v. Daily Mail Publ’g Co., 443 U.S. 97 (1979), the Court reviewed a West Virginia statute that made it a crime for a newspaper to publish the name of any youth charged as a juvenile offender, without written approval of a juvenile court. The statute provided for criminal sanctions for violation of this statute. The press urged the Court to hold that because the statute requires juvenile court approval prior to publication of a juvenile’s name, it operated as a prior restraint on speech. The Court said: “The resolution of this case does not turn on whether the statutory grant of authority to the juvenile judge to permit publication of the juvenile’s name is, in and of itself, a prior restraint. First Amendment protection reaches beyond prior restraints.” Id. at 101. The Court then held that regardless of whether the statute was deemed a prior restraint or a penal sanction for the publication of lawfully obtained information, only a state interest of the highest order could justify such a drastic infringement. The Court concluded: “If the information is lawfully obtained, as it was here, the state may not punish its publication except when necessary to further an interest more substantial than is present here.”' Id. at 104. The Court noted that the only interest advanced by the State as justification for the statute was to protect the anonymity of the juvenile offender. The Court stated that while that was an important interest, it was not sufficient to justify application of criminal penalties, and it did not satisfy constitutional requirements.
None of these decisions by the United States Supreme Court precisely deals with the issues facing this court today, but they provide some guidance. The net cast by Judge Zimmerman’s gag order on photography is very wide indeed. It includes Nichols, Sergeant Lovett, their families, and “any juvenile entering or leaving the Courts Building.” The physical boundaries of the order are also considerably broad. The order’s scope includes not only the courtroom and the courthouse but pictures taken outside of the courthouse as well. And the May 20 oral gag order, which was entered on June 2, appears to differentiate between adults and juveniles. That order precludes pictures of juveniles entering or leaving the Courts Building but prohibits publication of the photographs of the families of Nichols and Sergeant Lovett “in any manner.”
Judge Zimmerman made clear in open court the reasoning behind her gag order at the May 25 contempt hearing. She correctly observed that one purpose behind the Arkansas Juvenile Code is to maintain the confidentiality of the juvenile. A second goal is rehabilitation of the juvenile whenever appropriate. She alluded specifically to Ark. Code Ann. § 9-27-348 (Repl. 1998), which reads:
No information whereby the name or identity of a juvenile who is the subject of proceedings under this subchapter may be ascertained shall be published by the news media without written order of the juvenile court.
The judge further relied on Administrative Order Number 6 of this court, which prohibits photography in juvenile court and which authorizes judges to decide whether photographs in “areas immediately adjacent” to the courtroom would distract participants and impair the dignity of proceedings. Finally, the judge observed that she could have closed the juvenile proceedings to the public and the media altogether but chose instead to open the Nichols detention hearing under her authority set out in Ark. Code Ann. § 9-27-325 (i) (Repl. 1998). That statute reads:
(2) All other hearings may be closed within the discretion of the court, except that in delinquency cases the juvenile shall have the right to an open hearing and in adoption cases the hearings shall be closed as provided in the Revised Uniform Adoption Act, § 9-9-201 et seq.
Ark. Code Ann. § 9-27-327(i) (2) (Supp. 1999). Her gag order, she stated, was narrowly tailored to balance the constitutional rights of the public and media against the rights of Nichols under the Arkansas Juvenile Code. Her order, she noted, was limited to photographs of the juvenile, Nichols, and Lovett as well as the families of Nichols and Lovett entering and leaving the courtroom and courthouse.
We do not disagree with Judge Zimmerman that confidentiality and rehabilitation are two overarching themes in the Juvenile Code. Our concern, nevertheless, is whether her gag orders went beyond the bounds of what was necessary under the facts of this case. We observe in this regard that the media does not contend in this case that § 9-27-348 of the Juvenile Code, which permits dissemination of the name and identity of a juvenile only by written order of the juvenile judge, is unconstitutional as a prior restraint of the media. Nor does it appear to contest Judge Zimmerman’s authority under our Administrative Order Number 6 to protect participants in proceedings and to preserve the dignity of proceedings in areas immediately adjacent to the courtroom. What the media does take issue with is the proscription against “taking photographs in public places, including but not limited to public sidewalks and public streets.” This leaves somewhat murky the question of whether the media is raising the issue of pictures taken in the courthouse but not immediately adjacent to the courtroom.
In any case, two critical points decide the issue of prior restraint in the estimation of this court. The first critical point is that the juvenile proceedings were open to the public and media on May 18 and May 20. The proceedings were then ordered closed on May 25, but ordered open to the public and media by the June 6 court order at the request of Nichols. Judge Zimmerman, as she acknowledged, could have closed the proceedings altogether under her statutory authority, but she chose not to do so, at least for most of the time in question. The second critical point is that the photograph of Nichols published before the May 18 gag order could not be restrained, as the judge correctly stated in her May 20 modified order. This means a photograph of Nichols as well as his identity and family were in the public domain prior to the judge’s order to the contrary. Thus, the proverbial bell had been rung, so to speak, and could not be unrung. The statutory policy prohibiting revelation of the name and identity of the juvenile had already been thwarted. In short, the combination of the fact that the juvenile proceedings had been open to the public and the media, and a photograph of Nichols had already been published with other identifying information lead this court to conclude that the state policy in favor of confidentiality had already been substantially undermined. No one contests the initial publication of Nichols’s name and photograph before the first gag order on May 18, and we must conclude that it was information that was lawfully obtained. Under such circumstances, there appears to be no overriding state interest at stake to justify restraining the media from taking additional photographs of Nichols.
That leaves this court with the issues of the other juveniles, the victim, and the families as well as whether the media can be restrained from taking photographs of all identified persons in “public places.” We admit to some question as to what the category of “any juveniles” encompasses and whether “families” includes more than the immediate families of Nichols and Lovett. The media, however, does not appear to contest the scope of “any juveniles,” and we will not address it. Suffice it to say, that gag orders must be narrowly tailored and “any juveniles” appears to be ill-defined. We agree with the media, however, that “families” is less than precise, and we direct Judge Zimmerman to address this category of persons more specifically.
With regard to public places, we conclude that Judge Zimmerman has the authority to exclude photographs in areas immediately adjacent to her courtroom under Administrative Order Number 6 for the purposes already stated. The scope of Administrative Order Number 6, however, does not include public streets and sidewalks outside of the courthouse. The media contest the breadth of the gag order in prohibiting these photographs in public places. The Seventh Circuit Court of Appeals has had occasion to address an order of similar scope. In Dorfman v. Meisgner, 430 F.2d 558 (7th Cir. 1970), the Court of Appeals held that a court rule prohibiting photographs in the courtroom “and its environs,” which embraced the plaza and sidewalks of the building, violated the First Amendment. We agree with this reasoning and hold that the gag order was too pervasive in its scope. Surely, the juvenile judge must protect participants in her proceedings from harassment and maintain the dignity of her court. But once the juvenile proceedings have been opened to the public, we discern no overriding state interest that would warrant an injunction against photographing Nichols and the others entering or leaving the courthouse.
We emphasize that the facts of this case do not involve a closing of the juvenile proceedings by the juvenile judge and a gag order issued by the juvenile judge prior to the first publication of the juvenile’s photograph and other vital information. Those circumstances are simply not before us. We hold, however, that under the facts of this case, the judge’s order was too broad and constituted a prior restraint of the media. Because we hold as we do, we need not reach the issue of prior notice to the media before the issuance of the gag order.
The breadth of the gag order leads us to conclude that the judge’s order is a plain, manifest, clear, and gross abuse of discretion. We issue a writ of certiorari to Judge Zimmerman and direct that she revise her order of May 20, 2000, which was entered on June 2, 2000, in accordance with this opinion.
Thornton, J., not participating.
Media Petition For Mandamus, p. 11. | [
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LAVENSKI R. SMITH, Justice.
Appellant Houston Gregory, Jr., appeals stice. for capital murder, robbery, and theft from Pulaski County Circuit Court in connection with the death of Jimmy Ridenhour. Following the convictions, the jury imposed sentences of life without parole for capital murder, twenty-two years for robbery, and ten years for theft. Our jurisdiction is pursuant to Ark. Sup. Ct. R. l-2(a)(2). On appeal, appellant challenges only the sufficiency of the evidence. He contends that the trial court erred in denying his motions for a directed verdict. We find no error and affirm.
Facts
In February 1996, Ridenhour worked at a Little Rock AutoZone parts store with Justin Flunt. Aside from work, the two were friends, and spent time together on weekends. According to Hunt, Ridenhour agreed to sell Hunt’s gray 1987 Ford Mustang for a $100.00 commission. Ridenhour found a prospective buyer in Gregory. On February 23, 1996, during Ridenhour’s lunch break at about 6:00 p.m., Ridenhour drove Hunt’s Mustang to 420 West 22nd Street in North Little Rock to meet Gregory and discuss the sale. Hunt and Hunt’s friend Andrew Pearlman followed in Pearl-man’s truck. Ridenhour and Hunt hoped to complete the sale during Ridenhour’s break. Ridenhour pulled into the driveway of the home and went to the door. Hunt and Pearlman waited in their truck at the curb. Hunt testified that when they first got to Gregory’s house, an occupant of the house told Ridenhour that Gregory was not home, so they drove both vehicles to a fast-food restaurant to eat. The occupant of the home was later identified as Eric Lamont Ticey. Upon their return, Ridenhour pulled up into the driveway at the residence. Ridenhour went inside and shortly thereafter came back out. He then told Hunt and Pearlman that the occupants of the house didn’t want “some white guy’s truck” parked in front of their house. By this time, appellant had arrived and was in the house with Ticey. Hunt and Pearlman moved their truck to a nearby parking lot and waited. They were about a block away as darkness approached. Hunt recalled that a tree partially obstructed their view of the house,. Although the tree limited full view, Hunt and Pearlman did see two people come out of the house, get in the Mustang, and leave. However, they were unable to identify either of them as Ridenhour. About thirty minutes later, the car returned, and the driver backed it down the side of the house. After about ten minutes, the Mustang was driven away again and did not return. Hunt and Pearlman waited for about another half hour, and then drove past the house, and around the area, but did not find the car or Ridenhour. They then returned to the AutoZone to see if perhaps Ridenhour had returned there, but he had not returned. Hunt and Pearlman then went to the police, and reported the incident. They also informed Ridenhour’s wife Sonja. Sonja testified her husband failed to call her from work that evening, as was his custom. She also testified that he was due to get off work at 9:00 p.m., and did not come home that night as expected. Sonja further testified that he had come home late only twice in the almost eight years they had known each other. No one saw Ridenhour again alive.
On February 29, 1996, police found the Mustang abandoned at a MacDonald’s restaurant fifteen to twenty blocks from Gregory’s mother’s house. Apparently, the car’s interior had been wiped down and all fingerprint evidence erased. On March 4, 1.996, while looking for stolen property, the sheriff’s department discovered Ridenhour’s body in an abandoned house one block from Gregory’s sister’s home. Ridenhour appeared to have been beaten and strangled. The body was partially clothed with a handcuff on one wrist. Police searched the residence at 420 West 22nd Street and found blood on the carpet and on a door-jamb to the bathroom. They also found a shotgun with blood on it.
Police questioned Gregory on February 27, 1996, and on March 6, 1996. He acknowledged Ridenhour had come to his residence, and that he had arranged to meet with him there. He asserted that Ridenhour could not find the car title on the car and so ‘pawned’ the car to Gregory for a few days for $40.00, so Gregory could try it out. Gregory also stated that after giving Ridenhour the $40.00, Ridenhour got in a small white car with two men and left. He then stated he used the car until February 24, 1996, when he again met Ridenhour and returned the car to him.
Approximately one year later on February 28, 1997, the prosecuting attorney filed a three-count felony information against Gregory charging him with capital murder, aggravated robbery, and theft of property. On March 11, 1997, the sheriff arrested Gregory pursuant to a bench warrant. Pulaski Circuit Court tried Gregory before a jury on February 9, 1999. He moved for a directed verdict at the close of the State’s case and again at the close of all the evidence, based upon failure to identify him as the perpetrator of the charged crimes. The trial court denied both motions. The jury convicted him on all counts. Gregory timely filed his notice of appeal. On appeal, as noted, Gregory raises the single issue of sufficiency of the evidence.
Sufficiency of the Evidence
A directed-verdict motion is a challenge to the sufficiency of the evidence. McDole v. State, 339 Ark. 391, 6 S.W.3d 74 (1999); Ayers v. State, 334 Ark. 258, 975 S.W.2d 88 (1998). When an appellant challenges the sufficiency of the evidence, we address the issue prior to all others. Byrd v. State, 337 Ark. 413, 992 S.W.2d 759 (1999). The test for determining sufficiency of the evidence is whether there is substantial evidence to support the verdict. Evidence is substantial if it is of sufficient force and character to compel reasonable minds to reach a conclusion and pass beyond suspicion and conjecture. Ladwig v State, 328 Ark. 241, 943 S.W.2d 571 (1997). We view the evidence in the light most favorable to the State. Windsor v. State, 338 Ark. 649, 1 S.W.3d 20 (1999); Dixon v. State, 310 Ark. 460, 839 S.W.2d 173 (1992). Only evidence supporting the verdict will be considered. Hendrickson v. State, 316 Ark. 182, 871 S.W.2d 362 (1994); Steggall v. State, 340 Ark. 184, 8 S.W.3d 538 (2000).
Circumstantial Evidence
A conviction must be supported by substantial evidence. Sanders v. State, 340 Ark. 163, 8 S.W.3d 520 (2000). The evidence supporting Gregory’s conviction is entirely circumstantial in nature. However, circumstantial evidence may constitute substantial evidence. Dixon v. State, 311 Ark. 613, 846 S.W.2d 170 (1993). Guilt can be established without eyewitness testimony, and evidence of guilt is not less because it is circumstantial. Trimble v. State, 316 Ark. 161, 871 S.W.2d 562 (1994). A criminal defendant’s intent or state of mind is rarely capable of proof by direct evidence and must usually be inferred from the circumstances of the crime. Byrd, supra; Green v. State, 330 Ark. 458, 956 S.W.2d 849 (1997). Whether the evidence is direct or circumstantial, however, it must still meet the requirement of substantiality. It must force the fact-finder to reach a conclusion one way or the other without resorting to speculation or conjecture. Chism v. State, 312 Ark. 559, 853 S.W.2d 255 (1993); see also, Booker v. State, 335 Ark. 316, 984 S.W.2d 16 (1998).
The longstanding rule in the use of circumstantial evidence is that the evidence must exclude every other reasonable hypothesis than that of the guilt of the accused to be substantial. Smith v. State, 337 Ark. 239, 988 S.W.2d 492 (1999); Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984); Upton v. State, 257 Ark. 424, 516 S.W.2d 904 (1974); Jones v. State, 246 Ark. 1057, 441 S.W.2d 458 (1969); Johnson v. State, 210 Ark. 881, 197 S.W.2d 936 (1946); Turner v. State, 192 Ark. 937, 96 S.W.2d 455 (1936); O’Neal v. State, 179 Ark. 1153, 15 S.W.2d 976 (1929); Cohen v. State, 32 Ark. 226 (1877). With respect to the exclusion of every other reasonable hypothesis, Judge Butler, speaking for the court, said in the case of Bowie v. State, 185 Ark. 834, 49 S.W.2d 1049 (1932):
This demands that in a case depending upon circumstantial evidence the circumstances relied upon must be so connected and cogent as to show guilt to a moral certainty, and must exclude every other reasonable hypothesis than that of the guilt of the accused. Circumstances, however strong they maybe, ought never to coerce the mind of the jury to a conclusion of guilt if they can be reconciled with the theory that one other than the defendant has committed the crime, or that no crime has been committed at all.
Johnson v. State, 210 Ark. 881, 197 S.W.2d 936 (1946); Carter v. State, 324 Ark. 395, 921 S.W.2d 924 (1996). See also, Studdard v. State, 243 Ark. 73, 419 S.W.2d 134 (1967); Kagen & Tibbett v. State, 232 Ark. 189, 334 S.W.2d 865 (1960); Taylor v. State, 211 Ark. 1014, 204 S.W.2d 379 (1947). Once a trial court determines the evidence is sufficient to go to the jury, the question of whether the circumstantial evidence excludes every hypothesis consistent with innocence is for the jury to decide. Smith v. State, 337 Ark. 239, 988 S.W.2d 492 (1999). Upon review, this court determines whether the jury resorted to speculation and conjecture in reaching its verdict. Boone v. State, 282 Ark. 274, 668 S.W.2d 17 (1984). Two equally reasonable conclusions as to what occurred merely gives rise to a suspicion of guilt. Carter v. State, 324 Ark. 395, 921 S.W.2d 924 (1996). We will set aside a judgment based upon evidence that did not meet the required standards, and thus left the fact finder only to speculation and conjecture. Smith v. State, 264 Ark. 874, 575 S.W.2d 677 (1979); see also, Jones v. State, 246 Ark.1057, 441 S.W.2d 458 (1969).
The evidence in the instant case is not huge in quantity, however what evidence there is does not admit of any other reasonable conclusion than the appellant’s guilt. The appellant’s own statement placed him at 420 West 22nd on February 23, 1996, with the victim and Ticey, who was also charged in the murder. Forensic evidence admitted during trial consisting primarily of DNA taken from blood found at the residence established that the victim was killed at this address.
The medical examiner testified that strangulation and blunt-force injury to the head and chest caused Ridenhour’s death. He also testified that some of the blunt-force injury was consistent with an injury that could be inflicted by the butt - of a shotgun. Ridenhour’s stomach contents were consistent with Hunt’s and Pearlman’s testimony of having gotten a hamburger at a local restaurant. The State put on DNA evidence that the chances were one in 400,000 that the blood in the carpet came from someone unrelated to Ridenhour, and one in six thousand the blood on the door-jamb came from someone unrelated to Ridenhour. The blood sample on the shotgun was not of a sufficient amount to allow any determination other than it was blood.
The testimony of Hunt and Pearlman showed that two men were in the house when Ridenhour went inside to negotiate the sale after returning from eating. A shotgun, which had blood bn the butt and which the medical examiner testified could have caused the blunt trauma to Ridenhour, was recovered from appellant’s home. Hunt and Pearlman observed Hunt’s car being driven to the side of the house, which is consistent with the body being moved. Ridenhour’s body was found one block from appellant’s sister’s house. Appellant’s own statement placed him at his sister’s house that evening. The car was recovered fifteen to twenty blocks from appellant’s mother’s home, where appellant’s own statement placed him that weekend. Appellant’s own statement also puts the mustang in his possession, when the car belonged to Hunt.
Ridenhour’s disappearance coinciding with the failed car sale also implicates Gregory. Appellant’s explanation for the sale’s failure lacked credibility. Appellant stated Ridenhour was there by the time he got there and that the sale fell through because Ridenhour didn’t have the title. Appellant asserts Ridenhour ‘pawned’ him the car for $40.00 so he could try it out for a couple of days. Appellant also asserted he returned the car to Ridenhour on the 22nd of February. Apparently, the jury did not believe this explanation. False and improbable statements may be admissible as proof of guilt. Smith v. State, 282 Ark. 535, 669 S.W.2d 201 (1984).
Even though the evidence against appellant is circumstantial, it is sufficient. Overwhelming evidence of guilt in cases based upon circumstantial evidence is not required. Here, the evidence of the guilt of appellant meets the test of substantiality. It is of sufficient force and character to compel reasonable minds to the conclusion appellant committed the crimes charged, and, thus, passes well beyond suspicion or conjecture. The evidence excludes every other reasonable hypothesis than that of the guilt of the appellant. We therefore hold that the trial court did not err in denying appellant’s directed-verdict motions and accordingly, affirm.
Rule 4-3(h)
In compliance with Ark. Sup. Ct. R. 4-3 (h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no error has been found.
Affirmed. | [
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RAY THORNTON, Justice.
This appeal comes to us from a stice. denied standing to a grandmother seeking visitation rights under Ark. Code Ann. § 9-13-103(a)(l)(Repl. 1998). The trial court found that the grandmother, appellant in this case, lacked standing under the statute because appellee was her son and the primary custodian of the children. We hold that the trial court erred, and we reverse and remand the chancery court’s decision.
Appellant Sharon Boothe is the paternal grandmother of two grandchildren, Zachariah Andrew Case-Boothe, age six, and Haylee Marie Boothe, age four. Michael Boothe, appellee and the biological son of Sharon, is divorced from the children’s mother, Misty Michelle Case. Appellee has primary custody of Zachariah and Haylee, and he refuses to allow contact between appellant and the children.
Appellant filed a petition for grandparent visitation, alleging that it would be in the best interests of the children if grandparental visitation were granted. In her petition, she states that the last time she saw the children was in October 1998. Appellee denies this allegation, and later he filed a motion to declare Ark. Code Ann. § 9-13-103 unconstitutional, alleging that the statute invades the fundamental right of privacy of parents to determine with whom their children visit, and that it invades the right of parents to raise their children without undue state interference. The chancellor issued an order in which he denied appellee’s motion. He also found that appellant had no standing to pursue visitation under Ark. Code Ann. § 9-13-103. Appellant timely filed a notice of appeal. Appellee did not file a formal notice of cross-appeal, but seeks to raise two points on cross-appeal in his brief.
We will first address appellee’s constitutional challenge to the grandparent-visitation statute. The Attorney General was not notified of the challenge to the constitutionality of Ark. Code Ann. § 9-13-103, and the issue was not developed in the record of the proceedings before the trial court. The trial court ruled that the statute was not unconstitutional, and appellee did not file a notice of cross-appeal on this point. Under Ark. R. App. P. — Civil 3(d), a cross-appeal “may be taken by filing a notice of cross-appeal with the clerk of the court which entered the judgment, decree or order being appealed.” Id.
Ordinarily the failure to file a notice of cross-appeal would end the matter, but cross-appeals have been addressed even when no formal notice was filed. In Hasha v. City of Fayetteville, 311 Ark. 460, 845 S.W.2d 500 (1993), a notice of cross appeal was not filed. We pointed out that while a failure to file a notice of cross- appeal would ordinarily end the matter, the appellee in that case did not seek any relief it did not receive in the lower court, and we addressed the matter. Id. It is clear that a notice of cross-appeal is necessary when an appellee seeks something more than it received in the lower court. Moose v. Gregory, 267 Ark. 86, 590 S.W.2d 662 (1979).
In this proceeding, appellee is requesting relief he did not receive in the trial court. At the trial level, appellee requested the trial court to rule that Ark. Code Ann. § 9-13-103 is unconstitutional, and the trial court denied his motion. Without filing a notice of cross-appeal, appellee now requests us to provide additional relief by declaring that the trial court erred in failing to declare that the grandparent-visitation statute is unconstitutional because it invades his right to privacy. He requests something more than he received in the trial court. Therefore, we hold that his failure to file a notice of cross-appeal prevents us from considering this point on appeal.
The remaining issue to be resolved is whether appellant had standing to pursue visitation rights under Ark. Code Ann. § 9-13-103(a)(l). We have held that visitation rights existing in grandparents must be derived from statutes or conferred by a court of competent jurisdiction pursuant to statutes. Cox v. Stayton, 273 Ark. 298, 619 S.W.2d 617 (1981); Quarles v. French, 272 Ark. 51, 611 S.W.2d 757 (1981).
In 1975, the legislature provided for grandparent visitation in the event of divorce or custody proceedings. See Ark. Stat. Ann. § 34-1211.1 (Supp. 1983). A later amendment enacted a broad standard for grandparent visitation and allowed visitation to a grandparent “regardless of the marital status of the parents of the child or the relationship of the grandparents to the person having custody of the child.” See Ark. Stat. Ann. § 34-1211.2 (Supp. 1985). In 1987, the legislature again revised this area of statutory law and granted courts permissive authority to allow grandparents visitation in certain circumstances. Arkansas Code Annotated § 9-13-103 provides in pertinent part:
9-13-103. Visitation rights of grandparents.
(a)(1) Upon petition by a person properly before it, a chancery court of this state may grant grandparents and great-grandpar ents reasonable visitation rights with respect to their grandchild or grandchildren or great-grandchild or great-grandchildren at any time if:
(A)The marital relationship between the parents of the child has been severed by death, divorce, or legal separation
(2) The visitation rights may only be granted when the court determines that such an order would be in the best interest and welfare of the minor.
Id. A grandparent’s right to visit her grandchild is a right created by statute. Rudolph v. Floyd, 309 Ark. 514, 832 S.W.2d 219 (1992). This statute was amended in 1987 to provide visitation “if the marital relationship between the parents of the child has been severed by either death, divorce or legal separation.” Id.
Our rules of statutory construction and interpretation have often been repeated:
The first rule in interpreting a statute is to construe it just as it reads by giving words their ordinary and usually accepted meaning. Arkansas Vinegar Co. v. Ashby, 294 Ark. 412, 743 S.W.2d 798 (1988). Statutes relating to the same subject should be read in a harmonious manner if possible. All statutes on the same subject are in pari materia and must be construed together and made to stand if capable of being reconciled.... In interpreting a statute and attempting to construe legislative intent, we look to the language of the statute, the subject matter, the object to be accomplished, the purpose to be served, the remedy provided, legislative history, and other appropriate matters that throw light on the matter.
Board of Trustees v. Stodola, 328 Ark. 194, 942 S.W.2d 255 (1997) (citation omitted). On review of an issue of statutory interpretation, we are not bound by the decision of the trial court. In the absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Bryant v. Weiss, 335 Ark. 534, 983 S.W.2d 902 (1998); Hazen v. City of Booneville, 260 Ark. 871, 545 S.W.2d 614 (1977).
Under the plain reading of Ark. Code Ann. § 9-13-103, the trial court has discretionary power to grant visitation to a “grandparent or great-grandparent ... if [t]he marital relationship between the parents of the child has been severed by death, divorce, or legal separation...[.]” In the present case, the marriage between the parents of the grandchildren has been severed by divorce. The statute does not exclude the parents of the parent with custody from standing to seek visitation. However, it is also clear that the decision whether to grant visitation is a matter of discretion for the trial court, based upon the best interest and welfare of the minor. Id.
We have expressed this principle in many cases. In Rudolph, supra, we affirmed a chancellor’s order to grant visitation to a paternal grandfather, after paternity was established, for a child born out of wedlock. We stated that the grandparent visitation statute does not exclude grandparent visitation after a paternity finding. Id.
There are limitations upon grandparent-visitation rights. For example, these rights may be terminated by an adoption proceeding. In Suster v. DHS, 314 Ark. 92, 858 S.W.2d 122 (1993), we held that grandparental rights are derivative of their children’s parental rights and that the derivative right is subject to divestment by adoption. In Vice v. Andrews, 328 Ark. 573, 945 S.W.2d 914 (1997), we stated that “if there had been no adoption[,] ... the provisions of Ark. Code Ann. § 9-13-103 permitting grandparent visitation privileges would be the controlling statute.” Id.
We conclude that in the case before us, appellant has standing to petition for visitation rights under Ark. Code Ann. § 9-13-103(a)(1). Of course, we do not adjudicate the question whether appellant should be granted visitation rights. Under the statute, the trial court has discretion to determine whether visitation rights are appropriate under a best-interest-of-the-child standard.
Accordingly, we hold that the trial court erred in denying appellant standing to petition for visitation rights under Ark. Code Ann. § 9-13-103, and reverse and remand for further proceedings.
Reversed and remanded. | [
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RAY Thornton, Justice.
Appellant Jerry E. Smith brings tiappeal ce. judgment of the Union County Chancery Court awarding appellee Shana Benson Crumley Smith child support in the amount of thirteen percent of his net income for the benefit of their daughter. We assumed jurisdiction under Ark. Sup. Ct. R. 1-2 (a) (7), as a second or subsequent appeal following an issue previously considered by this court. See Smith v. Smith, 337 Ark. 583, 990 S.W.2d 550 (1999)(appeal dismissed for want of final order). Appellant contends on appeal that the chancellor erred in awarding support as established by the child-support guidelines because this resulted in an unreasonable amount for the provision of the needs of an infant. Because the chancellor correctly followed the guidelines established by this court in In re: Guidelines for Child Support, 314 Ark. 644, 863 S.W.2d 291 (1993) (per curiam) and ordered child support in the presumptively correct sum, and because that presumption was not rebutted by appellant’s evidence, we determine that there was no error and affirm the decision of the trial court.
When the parties married on December 2, 1995, appellant was fifty-nine years old; appellee was a twenty-three year old single mother of two employed by appellant’s company as a receptionist. The couple separated in April 1996 and appellant filed for divorce. Their daughter was born of the marriage on October 30, 1996. Appellee was given full custody of the child and appellant was awarded visitation. At the time the divorce decree was entered, the chancellor set child support at thirteen percent of appellant’s net income of $3,000 per week, or $390 per week for the child’s benefit. On appeal, appellant argues that because his income exceeds the highest bracket set out in the child-support chart, the trial court should not have “blindly” applied the thirteen percent of net income set out in the Child Support Guidelines for use when the bracket did not reach the actual level of net income earned. Appellant contends that child support in such instances should be determined by reference to the child’s reasonable needs. Appellant further contends that it was error for the trial court to have declined to order a trust to be established for the child, with some of the award for child support set aside for the child’s future needs.
The amount of child support lies within the sound discretion of the chancellor, and the chancellor’s finding will not be disturbed on appeal in the absence of a showing of an abuse of that discretion. Scroggins v. Scroggins, 302 Ark. 362, 790 S.W.2d 157 (1990). The Legislature has provided that a family-support chart is the appropriate method for determining the amount of support for children by their noncustodial parents. Arkansas Code Annotated § 9-12-312(a) (2) (Supp. 1999) provides:
In determining a reasonable amount of support ... to be paid by the noncustodial parent, the court shall refer to the most recent revision of the family support chart. It shall be a rebuttable presumption for the award of child support that the amount contained in the family support chart is the correct amount of child support to be awarded. Only upon a written finding or specific finding on the record that the application of the support chart would be unjust or inappropriate, as determined under established criteria set forth in the family support chart, shall the presumption be rebutted.
Id. The Family Support Chart is revised every four years by a committee appointed by the Chief Justice, to ensure that the support amounts are appropriate for child-support awards. The committee also establishes the criteria for deviation from use of the chart amount. In re: Guidelines for Child Support, 314 Ark. 644, 863 S.W.2d 291 (1993)(per curiam).
It shall be sufficient in a particular case to rebut the presumption that the amount of child support calculated pursuant to the Family Support Chart is correct, if the court enters in the case a written finding or specific finding on the record that the amount so calculated, after consideration of all relevant factors, including the best interests of the child, is unjust or inappropriate. Findings that rebut the guidelines shall state the amount of support that would have been required under the guidelines and include a justification of why the order varies from the guidelines.
Id.
The family-support chart is, in essence, a rule promulgated by the Arkansas Supreme Court. We construe court rules using the same means, including canons of construction, that are used to interpret statutes. See Gannett River States Pub. Co. v. Arkansas Judicial Discipline and Disability Comm’n, 304 Ark. 244, 247, 801 S.W.2d 292 (1990). The basic rule of statutory interpretation to which all other interpretative guides must yield is the necessity to give effect to the intent of the General Assembly. See Rogers v. Tudor Ins. Co., 325 Ark. 226, 925 S.W.2d 395 (1996).
The Child Support Guidelines provide that when the payor’s income exceeds that shown on a table included in the chart, the trial court is directed to apply a percentage of the payor’s weekly or monthly income to establish a presumptively reasonable level of support. Based upon the guidelines, appellant was ordered to pay thirteen percent of his weekly income of $3,000, or $390 per week for his daughter. Provision was made to allow payments to be made monthly.
We begin with the presumption that the chart amount is reasonable. Cochran v. Cochran, 309 Ark. 604, 832 S.W.2d 252 (1992). Reference to the chart is required, and the chart establishes a rebuttable presumption of the appropriate amount which can only be modified on the basis of written findings stating why the chart amount is unjust or inappropriate. Black v. Black, 306 Ark. 209, 812 S.W.2d 480 (1991).
While there is a rebuttable presumption that the amount of support according to the Child Support Guidelines is correct, the presumption may be overcome if the chancellor determines that the chart amount is unjust or inappropriate. See Scroggins, supra. In the case sub judice, appellant sought to persuade the chancellor that the $390 weekly allowance for child support was unjust or inappropriate because that amount exceeded what appellant contended was a reasonable requirement for child support for a very young child. Appellant sought to prove his contention that the weekly allowance was excessive through cross-examination of appellee as to her utility bills, cost of food, and the costs associated with living in her trailer home, as well as those expenses on her affidavit of financial means, which had been prepared before the child was born.
The cross-examination of appellee did not convince the chancellor that the presumptive standard established by the Child Support Guidelines was unjust or inappropriate, and appellant did not seek to introduce or proffer other evidence to support a finding that a variance from the guidelines was required. The chancellor may consider nineteen enumerated factors to support a deviation from the presumptive amount set out in the guidelines, see In re: Guidelines for Child Support Enforcement, supra, but when deviating from the guidelines, the chancellor must explain his or her reasoning by the entry of a written finding or by making a specific finding on the record. See Scroggins, supra; Ark. Code Ann. § 9-12-312(2).
Here, the chancellor considered the limited evidence supporting a variation from the chart and found specifically that “the evidence does not indicate any reason which should cause deviation from the child support chart....” We cannot say that the chancellor abused his discretion in making this finding. In the absence of a finding by the trial court specifically approving a deviation from the chart, the amount established by the guidelines is the reasonable amount to provide for the child’s needs. With regard to appellant’s contention that the trial court erred in failing to consider the age of the child in making its determination as to reasonable support amounts, we note only that neither the statute, nor the Child Support Guidelines, offer any distinction based on the child’s age as a basis for deviation from the guidelines. Therefore, there was no error in the trial court’s failure to rely upon age to reduce the award.
Based on the record before the trial court, we cannot conclude that the chancellor abused his discretion in finding that appellant did not present sufficient evidence to rebut the presumption in favor of the percentage of support called for in the Child Support Guidelines. Accordingly, we hold that the chancellor did not commit error in declining to deviate from the presumptively correct support amount and affirm his decision on that point.
Finally, we consider appellant’s second point on appeal, that the trial court erred in failing to establish a trust for the child with the support funds paid out of the amount established for child support. Our reading of the statute and the guidelines does not convince us that the chancellor had the authority to designate portions of the child-support award for that purpose. Assignments of error presented by counsel in their brief, unsupported by convincing argument or authority, will not be considered on appeal, unless it is apparent without further research that they are well taken. Dixon v. State, 260 Ark. 857, 545 S.W.2d 606, 609 (1977). As appellant notes in his brief, child support is not to provide for the accumulation of capital by children, but is to provide for their reasonable needs. Heins v. Heins, 783 S.W.2d 481 (Mo. Ct. App. 1990). We affirm the trial court on this point as well.
Affirmed. | [
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PER CURIAM.
Val P. Price, attorney for Paul Emery, petiIAM. reconsideration of this court’s order issued on February 16, 2000, which denied his motion for attorney’s fees. We conclude that Mr. Price’s petition has merit and, therefore, grant his motion for attorney’s fees.
Appellant Paul Emery was convicted in the Jackson County Circuit Court of one count of rape and one count of sexual abuse. He was sentenced to prison terms of forty years and ten years, respectively. Pursuant to Anders v. California, 386 U.S. 738 (1967), Mr. Emery’s appointed counsel, Val P. Price, filed a motion to be relieved and a brief stating there was no merit to the appeal. Mr. Emery also filed a pro se brief. This court affirmed the convictions and sentences in Emery v. State, CR 97-993, slip op. (Ark. Nov. 4, 1999).
Mr. Price, a state-salaried public defender, filed a motion for attorney’s fees pursuant to Ark. Sup. Ct. R. 6-6 (c) for work done on Mr. Emery’s criminal appeal. We denied the motion for attorney’s fees, citing Rushing v. State, 340 Ark. 84, 8 S.W.2d 489 (2000), where we held that Ark. Code Ann. § 16-87-214 precludes state-salaried public defenders from receiving additional compensation from the State for their services. See also, Ark. Code Ann. §§ 19-4-1601 — 1615. On February 22, 2000, Mr. Price filed a motion for reconsideration of the denial of his motion for attorney’s fees, asserting that he became a state-salaried public defender on January 1, 1998. Fie further states that all of the work for which he seeks compensation occurred prior to that date while he was a part-time public defender paid by Jackson County. Mr. Price does not seek compensation for any work which he performed as a state-salaried public defender.
In view of these representations by Mr. Price, we conclude that he did not become a state-salaried public defender subject to the limitations of Ark. Code Ann. § 16-87-214 until January 1, 1998. We therefore hold that he is entitled to attorney’s fees under Ark. Sup. Ct. R. 6-6(c) for any work on Mr. Emery’s appeal that was performed prior to Mr. Price’s employment as a state-salaried public defender.
Motion Granted. | [
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PER CURIAM.
On April 25, 2000, petitioner Bobby Roberts, individually, and on behalf of Arkansans to Protect Police, Libraries, Education and Services, filed a complaint and petition for review pursuant to Act 877 of 1999, now codified at Ark. Code Ann. § 7-9-501 through 506 (Repl. 2000). In his complaint and petition, Roberts challenges the Declaration by respondent Sharon Priest, as Secretary of State, that the initiative petition proposing to abolish ad valorem property taxes is fair, accurate, and valid. He alleges in his complaint and petition certain defects in the popular name and ballot title for the proposed amendment and further contends that the proposed amendment is unconstitutional because it would impair the obligation of contracts. He prays that we declare the initiative petition to be legally insufficient and enjoin its placement on the November 7, 2000 general election ballot. Roberts has also moved this court for an expedited scheduling order pursuant to Act 877 and Amendment 7 to the Arkansas Constitution.
We note initially that at this writing the sponsor of the proposed amendment has not intervened in this original action. It is the sponsor, of course, who has the real interest in opposing a challenge to the proposed initiative.
We grant the motion for an expedited scheduling order. The complainant’s abstract and brief will be due on June 1, 2000. All response briefs will be due on June 15, 2000. Oral argument is set for June 22, 2000. We direct Roberts to personally serve the sponsor of the proposed amendment with a copy of this per curiam. | [
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W.H. “DUB” ARNOLD, Chief Justice.
The Court of Appeals ustice. consider whether the doctrine of res judicata applies to probation-revocation proceedings, particularly where a prior revocation was reversed on appeal for denial of due process. Our jurisdiction is authorized pursuant to Ark. R. Sup. Ct. l-2(b)(l), (5) (1999), because the case presents an issue of first impression and a significant issue needing development or clarification of the law. Under the instant facts, where (1) appellant failed to timely object to the State’s amendment of its revocation petition, (2) appellant failed to timely object to the trial court’s failure to follow the appellate court’s mandate on remand, and (3) the prior reversal did not result in a judgment on the merits, we hold that res judicata does not apply. Accordingly, we affirm the circuit court’s judgment revoking appellant’s probation.
Background
In May of 1995, appellant, Danny Lee Hill, pled guilty to felony terroristic threatening and was placed on probation for six years with certain conditions of supervised probation, including that he refrain from the violation of any city, state, or federal laws and that he pay court-ordered fines. On March 12, 1998, the State filed a motion to revoke appellant’s probation on the ground that he violated the terms of his probation when he was arrested for driving while intoxicated on October 31, 1997. Significantly, at the revocation hearing on April 1, 1998, the trial court permitted the State to introduce evidence of probation violations not enumerated in its petition, including nonpayment of fines and three other DWI convictions. Appellant objected to the introduction of the additional evidence on the basis that he was denied due process, specifically, lack of notice. After considering the evidence outside the State’s petition, the trial court revoked appellant’s probation.
Subsequently, Hill appealed the decision to the Court of Appeals, which reversed the revocation and remanded the case to the trial court for further proceedings. Hill v. State, 65 Ark. App. 131, 985 S.W.2d 342 (1999). Notably, the record before the appellate court demonstrated that the trial court’s decision to revoke appellant’s probation was based upon the violations and incidents not enumerated in the petition rather than upon the stated DWI offense. Hill, 65 Ark. App. at 132-33, 985 S.W.2d at 342-43. In fact, the trial court rejected the October 31, 1997, DWI offense as a basis for revocation because evidence of that offense was tainted by failure to give Miranda warnings. Hill, 65 Ark. App. at 132, 985 S.W.2d at 342.
On remand, the State filed an amended motion for revocation on April 9, 1999, alleging that the three DWI convictions and the failure to pay court fines, erroneously introduced into evidence at the first revocation hearing, constituted violations of appellant’s probation conditions. In light of the prior revocation hearing, the State eliminated any reference to the October 31, 1997, DWI arrest. Following a hearing on May 6, 1999, the trial court again revoked appellant’s probation and sentenced him to six years’ imprisonment in the Arkansas Department of Correction on the felony-terroristic-threatening charge and a year each on two related misdemeanors, with three years suspended. From that decision comes the instant appeal.
I. Failure to abstract May 5, 1995, judgment
Before addressing the merits of appellant’s argument, the State contends that Hill’s claim is procedurally barred because he failed to abstract the trial court’s May 5, 1995, judgment following his initial guilty plea. The State suggests that the judgment, which underlies the trial court’s ultimate decision to revoke Hill’s probation, is essential to our review. In response, Hill claims that the judgment actually appealed from is not the May 1995 order but the May 6, 1999, judgment revoking his probation a second time. Similarly, Hill acknowledges that in his first appeal, the judgment appealed from was the April 1, 1998, decision revoking his probation. Signif icantly, both of these judgments appear in appellant’s addendum in compliance with Ark. R. Sup. Ct. 4-2(a)(8).
We agree with appellant that the May 5, 1995, judgment is not critical to our appellate review. Ark. R. Sup. Ct. 4-2(a)(6) requires an appellant to abstract:
only such material, parts of the pleadings, proceedings, facts, documents, and other matters in the record as are necessary to an understanding of all questions presented to the Court for decision.
(Emphasis added.) First, the May 1995 judgment is not “necessary” to our understanding of the question presented in this appeal. Although the State cites Wallace v. State, 326 Ark. 376, 931 S.W.2d 113 (1996), in support of its position that the judgment is necessary to our understanding of the issues on appeal, Wallace is distinguishable. In Wallace the court was unable to resolve an issue on appeal because it was unclear whether the original conviction was for one count or two, or for a misdemeanor or a felony, and the judgment in the record was illegible. Wallace, 326 Ark. at 381, 931 S.W.2d at 116. Therefore, the failure to abstract a material judgment warranted our finding that the abstract was flagrantly deficient. Id. Without the abstract of the judgment, the court could not decide the issue in Wallace. Id.
In the instant case, the absence of the May 5, 1995, judgment does not preclude our consideration of the merits of Hill’s argument that the trial court erred by permitting the State to amend its revocation petition. Second, the abstracting requirement applies only to “matters in the record.” Here, the May 5, 1995, judgment was not placed in the record, and its absence indicates that the State, not appellant, failed to introduce the judgment at trial. In sum, we reject the State’s argument that Hill’s abstract is deficient and that his claim is procedurally barred.
II. Amended revocation petition
Appellant’s sole point on appeal challenges the trial court’s decision permitting the State to amend its revocation petition by resubmitting evidence of probation violations that the appellate court determined were improperly introduced in appellant’s first revocation hearing. Hill makes two distinct arguments in support of his position. First, he claims that the trial court failed to follow the appellate court’s mandate reversing and remanding the case for “proceedings according to law and not inconsistent with the opinion of the Court.” Second, Hill asserts that the doctrine of res judicata barred the State’s amendment.
A. Mandate on remand
Hill cites Ferguson v. Green, 266 Ark. 556, 587 S.W.2d 18 (1979), to establish that the trial court erred on remand by permitting the State to amend its revocation petition. We explained in Ferguson that when a judgment is reversed for error in the proceedings and remanded for proceedings “according to law and not inconsistent with the opinion of the court,” we are not reversing or vacating the trial court proceedings that occurred prior to the stated error. Ferguson, 266 Ark. at 568, 587 S.W.2d at 25-26. Instead, we intend for the trial court to progress the cause anew from the point that the error was adjudicated. Id. Simply, the trial court should resume the proceedings from the point at which the reversible error occurred.
According to the appellate court’s decision in Hill v. State, 65 Ark. App. 131, 985 S.W.2d 342 (1999), reversible error occurred when HUI was denied due process at the point when the State was permitted to introduce evidence of probation violations not enumerated in the petition to revoke. Hill, 65 Ark. App. at 132, 985 S.W.2d at 342. Thus, the reversible error occurred after the original petition was filed and at the point when the additional violations were introduced into evidence and Hill objected to the lack of notice.
Although Hill now argues that the trial court erred on remand by revisiting the State’s petition and permitting amendment, he failed to make a timely objection at the May 6, 1999, hearing. In fact, the trial court provided appellant’s counsel with the opportunity to be heard at the beginning of the hearing. Rather than objecting to the State’s amended petition or addressing the scope of the appellate court’s mandate, counsel stated that he was ready to proceed. Moreover, Hill failed to object to the amended petition when it was filed by the State on April 9, 1999, approximately one month before the revocation hearing. The State correctly notes that Hill objected only to the introduction of the three DWI convictions as evidence but not to their inclusion in the petition.
It is well settled that an appellant may not change the grounds for objection on appeal but is limited by the scope and nature of his objections and arguments presented at trial. Ayers v. State, 334 Ark. 258, 264, 975 S.W.2d 88, 91 (1998). The supreme court cannot consider arguments raised for the first time on appeal. Wallace v. State, 326 Ark. 376, 379, 931 S.W.2d 113, 115 (1996). Hill’s failure to preserve his argument by timely objections constitutes a waiver and precludes our appellate review.
B. Res judicata
The second prong of appellant’s argument is that res judicata prohibits the State from seeking a subsequent revocation on the basis of violations not enumerated in its prior petition. Essentially, Hill asserts that the trial court erred by permitting the State to amend its petition by adding violations that it could have pled in its initial motion. Res judicata, or claim preclusion, bars the relitigation of a subsequent suit when (1) the first suit resulted in a judgment on the merits; (2) the first suit was based on proper jurisdiction; (3) the first suit was fully contested in good faith; (4) both suits involved the same claim or cause of action which was litigated or could have been litigated but was not; and (5) both suits involved the same parties or their privies. Fariss v. State, 303 Ark. 541, 544, 798 S.W.2d 103, 104 (1990). If applied in this context, res judicata would prevent the State from raising any issue in the second revocation hearing that it could, but did not, raise at the first hearing. Consequently, the State’s decision to enumerate only the October 31, 1997, DWI offense, in the first petition would bar it from citing additional offenses in an amended petition.
However, an initial prerequisite to applying res judicata is that the first suit resulted in a judgment on the merits. An illustrative case aptly presents this principle. In Lincoln v. State, 287 Ark. 16, 696 S.W.2d 316 (1985), this court considered Lincoln’s second appeal from his conviction for attempted.first-degree murder. Previously, the Court of Appeals reversed his conviction following his first appeal. See Lincoln v. State, 12 Ark. App. 46, 670 S.W.2d 819 (1984). In discussing the background of Lincoln’s case, we noted that before the first trial, the trial court refused the State’s request to amend the information to allege prior convictions because it was filed “ ‘too close to trial for the defense to be prepared.’ ” Lincoln, 287 Ark. at 17, 696 S.W.2d at 317. However, on retrial, the State again asked to amend the information to allege three prior convictions. Id. This time, the trial court granted the State’s request. Id.
In his second appeal, Lincoln, like Hill, argued that res judicata prevented the State’s subsequent amendment of the information because the trial court’s earlier decision controlled the issue on retrial. Lincoln, 287 Ark. at 17, 696 S.W.2d at 317. In holding that the doctrine of res judicata did not apply, we acknowledged that the factual basis of the trial court’s decision, i.e., the timeliness of the proposed amendment, was no longer a factor in the later trial. Id. Moreover, we observed that the amendment was not denied at the first trial because it was wrong, or illegal, but simply because it was untimely. Id.
Here, the appellate court reversed Hill’s first probation revocation because he was denied due process. Hill, 65 Ark. App. at 132, 985 S.W.2d at 342 (1999). The court remarked that the State’s failure to timely notify Hill of its basis for the proposed revocation was fundamentally unfair because Hill could not properly prepare for the hearing without knowing in advance what charges of misconduct were to be investigated. Hill, 65 Ark. App. at 133, 985 S.W.2d at 343 (1999). In short, the revocation was reversed on appeal simply because the State’s introduction of the additional violations was untimely. Id. Given our holding in Lincoln, we conclude that the reversal on due-process grounds was not a final judgment on the merits, and res judicata does not apply. Accordingly, we affirm the trial court’s May 6, 1999, judgment revoking appellant’s probation. | [
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Olly Neal, Judge.
This is an appeal from the Pulaski County Circuit Court where appellant, Kedron Johnson, was convicted and sentenced to serve 300 months in the Arkansas Department of Correction for the rape of L.P. On appeal, appellant argues that the evidence was insufficient to sustain the verdict and that the trial court unduly limited his cross-examination of the victim. We must affirm.
The appellate court treats a motion for a directed verdict as a challenge to sufficiency of the evidence. Jones v. State, 348 Ark. 619, 74 S.W.3d 663 (2002); Pickens v. State, 347 Ark. 904, 69 S.W.3d 10 (2002). The test for determining sufficiency of the evidence is whether the verdict is supported by substantial evidence, direct or circumstantial; substantial evidence is evidence that is of sufficient certainty and precision to compel a conclusion one way or the other and pass beyond mere suspicion or conjecture. Id. On appeal, the evidence is viewed in the light most favorable to the State, and only evidence that supports the verdict is considered. Id.
Appellant’s first contention is that the evidence was insufficient to sustain his rape conviction due to inadequate proof of forcible compulsion. This argument is based on the fact that L.P. testified at trial that appellant never threatened her and that he never used any force against her. We disagree.
Arkansas Code Annotated section 5-14-103(a)(l)(A) (Supp. 2001) provides that “[a] person commits rape if he engages in sexual intercourse or deviate sexual activity with another person by forcible compulsion.” Forcible compulsion means “physical force or a threat, express or implied, of death or physical injury to or kidnapping of any person.” Ark. Code Ann. § 5-14-101(2) (Supp. 2001). Physical force is any bodily impact, restraint or confinement, or the threat thereof. Williams v. State, 338 Ark. 97, 991 S.W.2d 565 (1999); see also Freeman v. State, 331 Ark. 130, 959 S.W.2d 400 (1998). In a rape case, the test for determining whether there was force is whether the act was against the will of the party upon whom the act was committed. Sublett v. State, 337 Ark. 374, 989 S.W.2d 910 (1999); see also Caldwell v. State, 319 Ark. 243, 891 S.W.2d 42 (1995).
One June 15, 2000, L.P. was kidnapped at gunpoint by two men as she left her job for the evening. The men placed her in the back seat of her vehicle and drove her to a home where she was repeatedly raped. L.P. had been at the home for five or six hours when she encountered the appellant, who also had intercourse with her. L.P. was eventually released, and shortly thereafter she contacted the police. Appellant, along with his other co-defendants, was later arrested and charged.
L.P. testified that she had never seen appellant before and that when he came into the room, she was “pretty hysterical and panicking.” She stated that:
He came in and said something like hey or something like that and told me I was pretty. I told him that I had to go the bathroom and I started walking to the bathroom. I did not really need to go to the bathroom, but I thought that if I could get away from him for a few minutes, he would not want to assault me in the way the others did. I had no clothes on. I thought if I could get out of his sight for a while he would not want to do that. He followed me into the bathroom. He told me that it had been a long time for him. He said he had been in some sort of rehab facility.
When he said that, I knew what he was going to do. I said, ‘Please don’t.’ He told me again that it had been a long time. I told him that all these guys had been through me and I can’t do it. I asked him to please don’t. I said it several times. He looked away. I noticed that he looked at the wall a lot and smiled. He kept saying it had been a long time. He told me to get on the floor on those cushions on my back. I told him when I did that to please don’t. He took his pants down and he raped me. ... I was continually telling him, ‘Please don’t.’ After he was finished, he got up and left.
* * *
When I was in the room with this defendant, I made it clear to him that I did not want to have sex with him. I said it a lot. I was begging. I did not want it to happen. I wanted him to know that I did not want it to happen. All of those other guys had been through me and I told him that I just could not take it any more. I made it clear to him that this sex was against my will and he raped me anyway.
We note that the State did not try appellant as an accomplice. In fact, just before the State made its opening statement, the deputy prosecuting attorney stated the following to the court outside the purview of the jury:
We want defense counsel to know that our case is going to consist of the victim’s abduction which explains her presence in that house, and the condition in which Kedron Johnson found her. She will say that there were others involved but we are not going to go into who did what to her other than she was raped. We are going to go straight to the Kedron Johnson matter[.]
Thus, we do not address whether or not appellant had knowledge of the aforementioned kidnapping, car theft, or rapes. Consequently, we are only left with a review of the encounter between appellant and the victim. We know that appellant and L.P. were absolute strangers. When appellant entered the room where L.P. was located, he found her in a hysterical and panicky state. There was no consensual initial contact between them. L.P. fled to the bathroom in an effort to get away from appellant. The fact that appellant followed her into the bathroom may be viewed as an element of restraint, which in turn suggests forble compulsion. Moreover, we have the unequivocal language of the victim, begging appellant not to rape her. In sum, there was substantial evidence to support the conviction for rape; therefore, we affirm.
Appellant also asserts that the trial court unduly limited his cross-examination of L.P. It is well-settled that the trial court has wide latitude to impose reasonable limits on cross-examination. Engram v. State, 341 Ark. 196, 15 S.W.3d 678 (2000); Larimore v. State, 317 Ark. 111, 877 S.W.2d 570 (1994). A substantial factor is whether the evidence is critical to the defense. Parker v. State, 333 Ark. 137, 968 S.W.2d 592 (1998). The trial court should also consider such reasonable limitations on a defendant’s right to cross-examine witnesses as harassment, prejudice, confusion of the issues, witness safety, repetition, and the relevance of the evidence. Id. This court will not disturb the trial court’s discretion in such matters unless that discretion was abused. Engram v. State, supra. To determine whether cross-examination restrictions infringed upon an appellant’s confrontation rights, we look to the record as a whole to determine if the restrictions imposed created a substantial danger of prejudice to the appellant. Id. Such prejudice is not presumed, but must be demonstrated. Id. The court will not reverse absent a showing of prejudice. Gordon v. State, 326 Ark. 90, 931 S.W.2d 91 (1996).
At trial, the State requested that the court limit the defense’s cross-examination of L.P. to what happened only between her and appellant. The trial court later required the defense to “[cjonfine it to this defendant.” Appellant argues that this limitation prevented him from asking L.P. about her conduct with the other co-defendants and prohibited him from questioning her subjective fear of him. We hold that this information, as the State insists, was simply irrelevant. The existence of forcible compulsion does not depend on the “quantum of force” that is applied, but rather on whether the act is consummated against the victim’s will. See Spencer v. State, 255 Ark. 258, 499 S.W.2d 856 (1973).
Affirmed.
Pittman, Robbins, Bird, and Vaught, JJ., agree.
Roaf, J., concurs. | [
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Wendell L. Griffen, Judge.
This is the second appeal involving a dispute over an alleged oral contract for the sale of land located in Saline County, Arkansas, between appellants, Harold (Bud) Ward and Linda Ward, and appellee, James Williams. We affirm the trial court’s decision and entry of judg ment for appellee based on its finding that the parties reached an enforceable oral agreement for the sale of land for which appellee was entitled to obtain specific performance.'
In our previous unpublished opinion, Williams v. Ward, CA99-502, slip op. (Ark. App. Feb. 23, 2000), we sufficiently outlined the facts of the case. Without detailing the facts again, we simply state that appellee filed a complaint against appellants for breach of an oral contract for the sale of land and sought specific performance of that contract. Appellants denied the existence of a contract. The trial court dismissed the case at the conclusion of appellee’s case in chief, upon appellants’ motion for a directed verdict, finding that the parties never had a contract. We reversed and remanded, holding that the trial court applied the incorrect standard in determining whether a contract had been formed.
On remand, appellants presented their case. The deposition testimony of Harold Ward, which was not part of the record in the first appeal, was introduced into evidence. After receiving testimony from both parties, the trial court entered judgment in favor of appellee based on its finding that the parties formed an oral agreement for the sale of land and that appellee’s actions of paying substantial money to appellants, making improvements and repairs, taking possession of the property, securing tenants, and collecting rent all constituted part performance so as to remove the oral contract from the statute of frauds. The trial court ordered specific performance of the oral contract. This appeal is from that decision and judgment.
Law of the Case
■ Appellants raise three arguments. They first argue that the trial court erred by misinterpreting our previous decision to mean that it was required to find that an oral contract for the purchase of land had been established by clear and convincing evidence and that the actions of appellee were more than sufficient to remove the contract from the statute of frauds. As such, appellants argue that the trial court abdicated its responsibility to weigh the proof by resorting to the law-of-the-case principle.
The law-of-the-case doctrine provides that the decision of an appellate court establishes the law of the case for the trial court upon remand and for the appellate court itself upon subsequent review and is conclusive of every question of law and fact previously decided by the appellate court. Linder v. Linder, 348 Ark. 322, 72 S.W.3d 841 (2002); Clemmons v. Office of Child Support Enforcement, 345 Ark. 330, 47 S.W.3d 227 (2001). Accordingly, a trial court must give deference to an appellate court’s mandate, implementing both the letter and spirit of the mandate, given the appellate court’s opinion and the circumstances it embraces. Dolphin v. Wilson, 335 Ark. 113, 983 S.W.2d 113 (1998).
The essence of our first opinion was that appellee established a prima facie case that the parties had an oral contract for the sale of land; therefore, the trial court erred in dismissing the case on appellants’ motion for a directed verdict. However, appellants argue that the trial court, on remand, was operating under the mistaken belief that our opinion required it to find that the parties had a contract for the sale of land, and thus, it failed to properly weigh the evidence. Appellants support their argument by quoting the trial court’s letter opinion to the parties’ attorneys. This argument is without merit.
The letter opinion provides as follows:
I have reviewed the proof from the hearing on January 25, 1998, and March 14, 2001, in the above referenced case as well as the plaintiffs Pre-Trial and Post Trial Briefs, the defendants’ Post Trial Brief and the Opinion of the Arkansas Court of Appeals dated February 23, 2000. The Court of Appeals found that the plaintiffs proof‘demonstrates that the transaction at issue clearly had the requisite objective indicators of mutual agreement necessary to form a contract and that appellant established, by clear and convincing evidence, that an agreement was reached’.
The question then is whether the defendants rebutted that proof sufficiently to conclude otherwise. The answer is no. Contrary to defendants’ argument that the terms of the contract are not definite, the Opinion is very clear: ‘Appellant established the property’s purchase price, the amount of the down payment and the manner in which it would be satisfied, the amount of each monthly payment, and the term of the contract’. In fact, all of the defendants’ contentions are contrary to the Court of Appeals’ findings.
Clearly, in light of the proof and the Opinion, the plaintiff should be given full credit for the $550,000.00 sale of the tract to Buford Blackwell. The contract price is paid in full, and the plaintiff is entided to conveyance of the property by warranty deed.
As to questions regarding the rental payments received, credits for improvements, attorneys’ fees and costs, those may require another hearing. Mr. Emerson, please draft a precedent consistent with this letter, and contact my case coordinator if in fact another hearing is desired. (Emphasis added.)
When we look at the trial court’s statements in their entirety, it is clear that the trial court considered all the evidence — not merely that presented by appellee •— before deciding in favor of appellee. The letter opinion shows that the trial court correctly understood our opinion as only holding that Williams had established a prima facie case of an oral contract, which made entry of a directed verdict for appellants inappropriate. Consistent with our opinion, implementing both the letter and spirit of our mandate, on remand, the trial court received proof from both parties, applied the appropriate legal standard, and reached its decision.
Meeting of the Minds
For their second argument, appellants contend that the trial court erred in failing to consider whether there had been a “meeting of the minds” in light of the supreme court’s holding in Williamson v. Sanofi Winthrop Pharmaceutical, Inc., 347 Ark. 89, 60 S.W.3d 428 (2001). More specifically, they argue that our opinion in Williams v. Ward, supra, stating that the phrase “meeting of the minds” was no longer in favor when considering whether a contract had been formed, was contrary to the holding in Williamson v. Sanofi Winthrop Pharmaceutical, Inc.
In Williamson v. Sanofi Winthrop Pharmaceutical, Inc., the Arkansas Supreme Court held:
We keep in mind two legal principles when deciding whether a valid contract was entered into: (1) a court cannot make a contract for the parties but can only construe and enforce the contract that they have made; and if there is no meeting of the minds, there is no contract; and (2) it is well settled that in order to make a contract there must be a meeting of the minds as to all terms, using objective indicators.
347 Ark. 89, 98, 60 S.W.3d 428, 434 (2001). Although the supreme court used the phrase “meeting of the minds,” the opinion indicated that a determination as to contract formation is to be made by using objective indicators. Id. Moreover, the supreme court has stated in other opinions that although it has continued to use the phrase “meeting of the minds,” the meaning it gives to the phrase is its modern terminology of “objective indicators of agreement.” Glover v. Woodhaven Homes, Inc., 346 Ark. 397, 57 S.W.3d 211 (2001); Crain Industries, Inc. v. Cass, 305 Ark. 566, 810 S.W.2d 910 (1991).
Clearly, there is no conflict between our opinion, which holds that contract formation should be determined by focusing on objective manifestations of mutual assent, and the supreme court’s opinion in Williamson v. Sanofi Winthrop Pharmaceutical, Inc. or other supreme court opinions, holding that contract formation should be determined by looking to objective indicators.
Clear and Convincing Evidence
Appellants’ third argument is that there is no clear and convincing evidence of the essential terms of a contract when the evidence is considered as a whole. We note that this contention directly contradicts appellants’ first claim that the trial court did not weigh all the evidence due to misapprehending our first opinion.
Clear and convincing evidence is that degree of proof that will produce in the fact-finder a firm conviction representing the allegations sought to be established. Creson v. Creson, 53 Ark. App. 41, 917 S.W.2d 553 (1996). Appellee testified that the par ties agreed upon a purchase price of $900,000, with a $300,000' down payment to be paid within two years, which subsequently was increased to $315,000 to be satisfied in three years, and that Harold Ward was to execute a twenty-year note at eight-percent interest for the $600,000 balance, with monthly payments of $5,018.64. Appellee stated that he paid appellants $315,000 in cash and merchandise, over a three-year period, as down payment, and that he had made at least forty payments of $5,018.64 each to appellants.
Although appellants argue that there was no contract because the parties could not agree to the terms so as to reduce their agreement to a writing, Harold Ward testified on remand that the parties agreed to a purchase price of $900,000 and that Williams was to pay $300,000 as a down payment with the $600,000 balance to be paid off in twelve months. Harold Ward further stated that Williams was to make monthly lease payments of $5,018.64 until the purchase was complete. Harold Ward acknowledged receiving approximately $315,000 for the down payment and forty payments of $5,018.64 from Williams, and that one of the payment schedules drafted by his attorney provided for $600,000 to be amortized over twenty years at eight-percent interest.
When the testimony is in conflict on the issue of whether the parties agreed, a fact question arises that is to be determined by the trial court. Country Corner Food & Drug, Inc, v. Reiss, 22 Ark. App. 222, 737 S.W.2d 672 (1987). We do not reverse on a factual issue as long as there is evidence to support the trial court’s finding and the finding is not clearly against the preponderance of the evidence. Weigh Sys. S., Inc. v. Mark’s Scales & Equip., Inc., 347 Ark. 868, 68 S.W.3d 299 (2002). A court may look to the conduct of the parties to determine their intent and to give substance to indefinite terms of a contract. Welch v. Cooper, 11 Ark. App. 263, 670 S.W.2d 454 (1984); Phipps v. Storey, 269 Ark. 886, 601 S.W.2d 249 (Ark. App. 1980).
The trial court considered the testimony of both parties and their conduct before reaching its decision. We are unable to agree with appellants’ argument that the decision was clearly erroneous.
Affirmed.
Stroud, C.J., Bird and Crabtree, JJ., agree.
Hart and Roaf, JJ., dissent. | [
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Josephine Linker Hart, Judge.
Appellant is the adminis-tratrix of the estate of Charles Emlet, who was killed when he was struck by a car driven by Rebecca Cherry. At the time of the accident, Cherry was the named insured under an automobile policy issued in the state of Oklahoma by appellee Progressive Northern Insurance Company. Appellant made demand on Progressive for the policy’s liability and uninsured motorist (UM) coverage limits, which were $50,000 and $25,000 respectively, and for $5548.80 in medical payments (med pay) coverage. Progressive refused to pay the UM and med pay benefits on the ground that the late Mr. Emlet was not an “insured person” as defined by the policy. Progressive filed a declaratory-judgment action and later a motion for summary judgment on that same ground. The trial judge granted summary judgment to Progressive. We affirm.
On the night of February 9, 2001, Rebecca Cherry had just pulled onto a four-lane highway and was traveling north when she struck Charles Emlet, who was crossing the highway on foot. According to Cherry, she did not realize she had struck Emlet, and she continued down the highway until she was stopped by police. A police investigator determined that, after Emlet was struck by the left front corner of Cherry’s vehicle, Emlet moved along the left side of the vehicle to a point behind the driver’s door, where he disengaged and came to rest on the highway about sixty-six feet beyond the point of initial impact. The investigator estimated that Emlet was in contact with the vehicle for as little as .2 seconds.
The uninsured/underinsured motorist coverage provisions of the Progressive policy provide that Progressive will pay damages that an insured person is entitled to recover from the owner or operator of an uninsured motor vehicle. The term “insured person” is defined to include “any person occupying a covered vehicle.” Occupying, as defined in the policy, means “in, on, entering, or exiting.” Progressive contended that Emlet was not an insured because he had not occupied the Cherry vehicle, and it asked the trial court to award summary judgment on that basis. Appellant responded with her own motion for summary judgment in which she argued that, during the time Emlet was carried sixty-six feet after the impact, he was “on” the vehicle and thus had occupied it. The trial judge ruled in favor of Progressive, and appellant appealed, contending that the trial judge erred in her interpretation of the policy.
Normally, on a summary judgment appeal, the evidence is viewed in the light most favorable to the party resisting the motion, and any doubts and inferences are resolved against the moving party. Aloha Pools & Spas, Inc. v. Employer’s Ins. of Wausau, 342 Ark. 398, 39 S.W.3d 440 (2000). But in a case where the parties agree on the facts, we simply determine whether the appellee was entitled to judgment as a matter of law. Id. When parties file cross-motions for summary judgments, as was done in this case, they essentially agree that there are no material facts remaining, and summary judgment is an appropriate means of resolving the case. McCutchen v. Patton, 340 Ark. 371, 10 S.W.3d 439 (2000). We further note that where the meaning of a contract does not depend on disputed extrinsic evidence, the construction and legal effect of the policy are questions of law. See Smith v. Prudential Prop. & Cas. Ins. Co., 340 Ark. 335, 10 S.W.3d 846 (2000).
Appellant relies on the case of Wickham v. Equity Fire & Casualty Co., 889 P.2d 1258 (Okla. Ct. App. 1994), to support her contention that Emlet occupied the Cherry vehicle. There, Wickham stopped to help a fellow motorist, McClain, change a tire. He helped McClain locate the necessary tools in the trunk of McClain’s car and proceeded to change the tire. As Wickham was tightening the last lug nut, he was struck by a passing, uninsured vehicle. He sought UM coverage under McClain’s policy, but coverage was denied on the ground that he had not been occupying the McClain vehicle. The Oklahoma court held that the definition of “occupying”contained in the policy (similar to the definition here) was broad enough to include Wickham, who had looked through the trunk for tools, repaired the vehicle, and was situated next to it when hit. The court said it would not adopt a bright-line rule to determine whether a claimant had occupied a vehicle but would address the issue on a case-by-case' basis.
Appellant also relies on Progressive American Insurance Co. v. Tanchuk, 616 So. 2d 489 (Fla. Ct. App. 1993), Adams v. Thomason, 753 So.2d 416 (La. Ct. App. 2000), and Pope v. Stolts, 712 S.W.2d 434 (Mo. Ct. App. 1986), to support her argument. In Tanchuk, a tow truck driver had just pulled a Toyota out of a ditch when he returned to the tow truck to radio his employer. As he was leaning into the truck, he heard the Toyota driver scream because a Pontiac was bearing down on her car. Tanchuk ran back to see what was happening and was hit by the Pontiac, which was uninsured. Tanchuk sought UM benefits under the tow-truck policy. The insurer defended on the basis that Tanchuk had not been occupying the truck when he was struck. The Florida court held that Tanchuk was occupying the vehicle because he had been alighting from it and was in close proximity to it when he was hit. In Adams v. Thomason, Adams was leaning against a vehicle that was parked on the side of the highway. Adams had been talking to the vehicle’s owner, Grubisic, through the open window of the vehicle for one to five minutes when a pickup went past and got so close that Adams feared it might hit him. Adams tried to climb on Grubisic’s vehicle to get out of the way, but he was struck by the pickup, which was uninsured. Adams sought UM coverage under Grubisic’s policy, and the appeals court held that coverage was owed because Adams was “on” the Grubisic vehicle and thus an occupant of the vehicle. In Pope v. Stolts, Pope was assisting Stolts with a dead battery in a Mustang. A Ford Granada was parked hood to hood with the Mustang for charging purposes. As Pope was leaning against the opened hood of the Mustang and holding jumper cables in his hand, an uninsured motorist struck the Granada, which caused Pope to be injured. Pope sought UM coverage under the Mustang policy, and the question was whether he had been occupying the Mustang at the time he was injured. The appeals court held that he was because he was “on” the Mustang.
In each of the above cases, the party seeking coverage was or had been in contact with the insured vehicle, and then the accident occurred; their status as occupants of the vehicles was established before the accident. In the case before us, Emlet had no contact with the insured vehicle until the impact occurred. In fact, his contact was the result of the accident, not a circumstance that existed when the accident happened. In light of that fact, we are reluctant to accord him the status of an occupant. His being in touch with the vehicle was simply a consequence of the accident itself. Therefore, we agree with the trial judge that Emlet cannot be considered an insured under the Progressive policy.
Progressive has also pointed out that its policy excludes UM coverage for persons who occupy the covered vehicle “without the express or implied permission” of the named insured. It argues that, even if Emlet occupied the Cherry vehicle, he did not do so with Cherry’s express or implied permission. Our holding that Emlet was not an occupant of the vehicle makes it unnecessary for us to address that argument.
Affirmed.
Bird, J., agrees.
Pittman, J., concurs.
The trial court ruled that the interpretation of the policy was governed by Oklahoma law, and that ruling is not challenged on appeal.
Under Oklahoma law, uninsured motorist coverage includes underinsured coverage. See Okla. Stat. Ann. tit. 36, § 3636(C) (West. 1999). Consequently, when the term “uninsured” or “UM” is used in the policy or in this opinion, it includes underinsured coverage. | [
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Larry D. Vaught, Judge.
Appellants William Vereen, Vereen, and James Vereen, the devisees of Mary Louise Wright, deceased, have appealed from the Arkansas County Circuit Court’s refusal to terminate a lease whereby appellees Mark Hargrove and Joyce Hargrove leased Mrs. Wright’s farm land. Appellees have filed a cross-appeal from the circuit judge’s refusal to award them attorney’s fees.
On January 14, 1998, Mrs. Wright agreed to lease farm land to appellees for a period of five years, with a five-year option to renew. According to the lease, appellees were to pay Mrs. Wright $6,000 annually, in two equal installments, before January 10 and July 15. Mrs. Wright died on January 29, 1999, and appellant William Vereen was appointed executor of her estate. On June 2, 2000, appellants notified appellees that they were in breach of contract for several reasons and that appellants intended to termi nate the lease effective December 31, 2000. Appellants accepted appellees’ July 2000 rent payment. In August and October 2000, appellants again notified appellees of their intent to terminate the lease and warned appellees not to plant any crops that would be harvested in 2001. Appellees, however, continued to plant crops in the fall of 2000.
On January 9, 2001, appellants filed a complaint requesting termination of the lease, possession of the farm land, and damages. Appellants alleged that appellees had breached the lease by: (1) using appellants’ irrigation well on the farm to provide water to another farm; (2) fading to promptly notify appellants of the breakdown of irrigation equipment and wells; (3) committing waste by constructing a tail-water recovery system and cutting timber on the farm; (4) failing to pay the January 10, 2000, rent on time. Appellants also alleged that appellees had taken advantage of Mrs. Wright’s mental weakness caused by her advanced age in obtaining her signature on the lease. Appellees denied being in breach and answered affirmatively that their actions were done with Mrs. Wright’s knowledge and consent and in accordance with the lease. They also alleged that the actions for which appellants sought forfeiture of the lease were induced by Mrs. Wright’s or appellants’ acquiescence and were waived.
After a bench trial, the judge issued a letter opinion on August 14, 2001, stating: “The Court cannot find that [appellees] have breached this lease agreement in any substantive respect. I believe this makes [appellants’ attorney]. Mr. Berry’s procedural objection moot.” AppeEees then filed a motion for $6,372.22 in attorney’s fees and costs pursuant to Ark. Code Ann. § 16-22-308 (Repl. 1999). On September 10, 2001, the judge entered judgment for appellees, again stating: “The Court cannot find that [appellees] have breached this lease agreement in any substantive respect which renders any procedural objection moot.” The judge awarded no attorney’s fees to appellees.
Arguments
Appellants argue on appeal that the judge erred in failing to consider evidence of the effect that Mrs. Wright’s advanced age and mental weakness had on her ability to determine the materiality of appellees’ breaches of the lease and that the judge’s finding that appellees did not breach the lease in any substantive respect is not supported by the evidence. In their cross-appeal, appellees contend that the judge abused his discretion in failing to award them attorney’s fees.
Standard of Review
The standard that we apply when reviewing a judgment entered by a circuit court after a bench trial is well established. We do not reverse unless we determine that the circuit court erred as a matter of law or we decide that its findings are clearly against the preponderance of the evidence. Riffle v. United Gen. Title Ins. Co., 64 Ark. App. 185, 984 S.W.2d 47 (1998). We view the evidence in the light most favorable to the appellee, resolving all inferences in the appellee’s favor. Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998). Disputed facts and the determination of the credibility of witnesses are within the province of the circuit court, sitting as the trier of fact. Id.
Mrs. Wright’s Mental Competence
Appellants contend in their first point on appeal that the trial judge erred in failing to consider evidence that Mrs. Wright lacked mental competence to determine the materiality of appellees’ breaches of the lease and to waive them. They also assert that the lease was not supported by consideration. The trial judge, however, did not base his decision on whether a waiver occurred and did not rule on any of these questions — he simply found that appellees had not breached the lease in any substantive respect. Without findings by the trial judge on these issues, we cannot address them. It is well settled that the failure to obtain a ruling from the trial court is a procedural bar to this court’s consideration of an issue on appeal. Ghegan & Ghegan, Inc. v. Barclay, 345 Ark. 514, 49 S.W.3d 652 (2001). Additionally, it is irrelevant whether Mrs. Wright waived appellees’ breaches of the lease if no substantive breaches occurred.
Materiality of the Breaches
The primary issue on appeal, therefore, is the sufficiency of the evidence. Appellants argue that the judge’s finding of fact that appellees did not breach the lease in any substantive respect is not supported by the evidence. When performance of a duty under a contract is contemplated, any nonperformance of that duty is a breach. Zufari v. Architecture Plus, 323 Ark. 411, 914 S.W.2d 756 (1996). As a general rule, the failure of one party to perform his contractual obligations releases the other party from his obligations. Stocker v. Hall, 269 Ark. 468, 602 S.W.2d 662 (1980). Forfeitures, however, are not favored in the law, and in order to be enforced, they must be plainly and unambiguously provided in the contract. Meers v. Tommy’s Men’s Store, Inc., 230 Ark. 49, 320 S.W.2d 770 (1959). Even when forfeiture is provided for by the express terms of a contract, it is well settled that, before a forfeiture will be declared, strict compliance with every important prerequisite must be shown. Id. Forfeitures that are incurred through inadvertence or mistake, without any bad faith on the part of the lessee, will be relieved against one on a showing that no actual damage has been sustained by the lessor. Id. Accord Robinson v. Cline, 255 Ark. 571, 501 S.W.2d 244 (1973). A relatively minor failure of performance on the part of one party does not justify the other in seeking to escape any responsibility under the terms of the contract; for one party’s obligation to perform to be discharged, the other party’s breach must be material. TXO Prod. Corp. v. Page Farms, Inc., 287 Ark. 304, 698 S.W.2d 791 (1985). An influential circumstance in the determination of the materiality of a failure fully to perform a contract is the extent to which the injured party will obtain the substantial benefit that he reasonably anticipated. Id.
In Holytrent Properties, Inc. v. Valley Park Limited Partnership, 11 Ark. App. 336, 32 S.W.3d 27 (2000), we held that a lessee could be denied an extension of his lease term if he breached a material covenant of the lease; however, if the breach was immaterial, he could exercise his renewal option. In Gardner v. HKT Realty Corp., 23 Ark. App. 148, 152, 744 S.W.2d 735, 737 (1988), we explained:
[W]e agree with the chancellor that there are circumstances where equity may grant relief from a delay or failure to give notice of the option to renew a lease. It is a generally accepted rule that the failure of such notice may be excused or relieved against in equity if fraud, accident, surprise, or mistake are shown to have caused the delay or there are other special circumstances warranting the relief. Under this rule, relief is warranted where on the one hand it is shown that the lessor has not changed his position or otherwise been prejudiced by the delay, and on the other that the enforcement of the covenant will result in undue and inequitable hardship to the tenant.
The lease contained the following relevant provisions:
3. It is mutually agreed by and between the parties hereto that the rental for the above described lands shall be the total sum of Six thousand and No/100 dollars ($6,000.00) one-half of which shall be due and payable on or before January 10 of each year and the other one-half of which shall be due and payable on or before July 15 of each year during the term hereof. It being recognized the first rental payment wase [sic] paid upon execution of the lease even if it is after January 10.
7. LESSEES covenant and agree to promptly pay the rentals in the time and manner aforesaid, to farm the lands in a good and husbandrylike manner, to neither commit waste nor permit waste to be committed upon the above described lands, to protect the lands from erosion and to use their best efforts to keep all obnoxious weeks [sic] and grasses under control at all times.
11. The failure or refusal by LESSEES to pay the rentals at the times and the manner provided by this lease, and the failure of LESSEES to keep and perform their convents [sic] hereunder, shall in either of these events, permit the LESSOR at her option and without any liability on her party [sic] to terminate this lease, re-enter and repossess said property and any crops growing thereon any [sic] cultivate and sell said crops at the expense of the LESSEES. . . .
(1) Late payment of rent. Appellants contend that appellees’ late payment of the January 10, 2000, rent installment was a material breach of the lease. It is true that a lease may validly contain a forfeiture clause for nonpayment of rent; however, to enforce such a clause, the landlord must bring himself strictly within its provisions. Sells v. Brewer, 125 Ark. 108, 187 S.W. 907 (1916). See also Duncan v. Malcomb, 234 Ark. 146, 351 S.W.2d 419 (1961).
Appellees’ payment of the January 2000 rent a few days late was not, under the circumstances, a material breach. Appellee Mark Hargrove testified that, after Mrs. Wright’s death, appellants never contacted him about where to send the rent payments. Appellee Joyce Hargrove’s testimony supports this. Additionally, it is apparent that this late payment was of little consequence to appellants at the time; Mr. Hargrove also testified that, when he met with appellants Bill Vereen and Jim Vereen in March 2000, they did not mention the late payment.
(2) The purpose of the lease and waste. Appellants also assert that appellees materially breached the lease by constructing the tail-water recovery system on the property and by using the well on the property to provide water to a neighbor’s farm. In doing so, appellants argue, appellees committed waste and used the farm for a purpose not contemplated by the lease.
A tenant is impliedly obligated to use leased property in a proper and tenant-like manner, without exposing it to ruin or waste by acts of omission or commission, and not to put it to a use that is materially different from that in which it is usually employed or violative to the spirit and purpose of the lease. Amisano v. Shaw, 214 Ark. 874, 218 S.W.2d 707 (1949). Whether a statement in a lease of the use to be made of the premises implies a covenant not to use the premises for other purposes depends on the intention of the parties. Id. A covenant that premises shall be used for a specified purpose does not impliedly forbid their use for a similar lawful purpose that is not injurious to the rights of the landlord. Id. Accord Coulson Oil Co. v. Wilcox, 12 Ark. App. 111, 671 S.W.2d 198 (1984).
Mr. Hargrove testified that the farm land was in poor shape when appellees leased it and that it lacked sufficient irrigation. He said that, with the help of the soil conservation service, he constructed the tail-water recovery system, which involved the laying of irrigation pipe. He testified that he had spent between $20,000 and $30,000 on the farm’s water system. He said that the tail-water recovery system stops erosion and significantly helps the irrigation, of the crops and that its use had placed less demand on the farm’s well. Mr. Hargrove also testified that crop yields had significantly increased. He stated that the farm is in much better shape and is much more valuable now than it was at the beginning of the lease.
Appellant William Vereen admitted that, when his uncle had farmed this land, a tail-water system had been in use and that appellees had expanded the existing ditch. Charles Cunningham, who designed the tail-water recovery system while working for the United States Department of Agriculture, testified that, at first, the farm was short on water. He said that its existing drainage ditch, which was used in the construction of the tail-water recovery system, was overgrown with weeds, bushes, and small trees. He stated that the clearing of brush and the small amount of land used for the system were well worth its benefits: greater crop yields, less erosion, increased economy, better weed control, and increased land value. We hold that the installation of the tail-water recovery system was easily within the stated purpose of the lease (the growing of crops) and that it did not amount to waste.
As for the use of the farm’s well to provide water to a neighbor’s farm, Mr. Hargrove explained that, in 1999, he had given a neighbor enough well water for twenty acres in exchange for enough water for forty acres, which placed less demand on the farm well. Clearly, the overall result of this exchange was an increased amount of water for the farm at no additional cost. Because irrigation is a necessary part of the growing of crops and the exchange did not injure appellants, we hold that appellees did not violate th'e purpose of the lease or commit waste in this regard.
Accordingly, we cannot say that the judge erred in finding no substantive breach of the lease and affirm his refusal to declare a forfeiture of the lease.
Attorney’s Fees
In their cross-appeal, appellees argue that the trial judge abused his discretion in failing to award them attorney’s fees. The general rule in Arkansas is that attorney’s fees are not awarded unless expressly provided for by statute or rule. Security Pac. Housing Servs., Inc. v. Friddle, 315 Ark. 178, 866 S.W.2d 375 (1993). Arkansas Code Annotated section 16-22-308 (Repl. 1999), provides that a reasonable attorney’s fee may be awarded to the prevailing party in certain civil actions, including those for breach of contract. This statute permits an award of attorney’s fees in an action involving the breach of a lease. See Sunbelt Exploration Co. v. Stephens Prod. Co., 320 Ark. 298, 896 S.W.2d 867 (1995). Whether to award attorney’s fees under this statute is a matter within the trial judge’s discretion. Cumberland Fin. Group, Ltd. v. Brown Chem. Co., 34 Ark. App. 269, 810 S.W.2d 49 (1991). The trial judge’s decision will not be reversed absent an abuse of that discretion. Little Rock Wastewater Util. v. Larry Moyer Trucking, Inc., 321 Ark. 303, 902 S.W.2d 760 (1995). However, a clearly erroneous interpretation or application of a law or rule will constitute a manifest abuse of discretion. Id.
Here, the trial judge did not provide an explanation for his failure to award attorney’s fees to appellees. When the trial judge’s order gives no explanation that can be founded in the proper application of the law, it is necessary to remand for reconsideration. Little Rock Wastewater Util. v. Larry Moyer Trucking, Inc., supra. Because we do not know the reason that the trial judge declined to award attorney’s fees, we remand for him to consider whether to make such an award.
Affirmed on direct appeal; remanded on cross-appeal.
Bird and Baker, JJ., agree.
Apparently, the judge was referring to appellants’ proffer of evidence showing that, at the time Mrs. Wright signed the lease, her mental condition had deteriorated.
Waiver is the voluntary abandonment or surrender by a capable person of a right known by him to exist, with the intent that she shall forever be deprived of its benefits. Bharodia v. Pledger, 340 Ark. 547, 11 S.W.3d 540 (2000).
See Newberry v. McClaren, 264 Ark. 735, 575 S.W.2d 438 (1978). | [
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Jphn F. Stroud, Jr., Chief Judge.
Appellant, Judith Rebecca Hass, and appellee, Farrell Dewitt Hass, were pre viously before this court in Hass v. Hass, 74 Ark. App. 49, 44 S.W.3d 773 (2001). Appellant lived in Fayetteville, Arkansas, and had primary custody of the parties’ son, Jay, who was born in 1995. She was offered a federal clerkship in El Dorado, Arkansas, upon her graduation from law school. Appellee opposed the relocation and sought custody of the child should appellant decide to relocate to El Dorado. The lower court ruled in favor of the father, but we reversed, allowing the mother to relocate and retain custody of the child. In proceedings following the entry of that opinion, the trial court, inter alia, 1) modified the visitation schedule for Jay in light of appellant’s relocation to El Dorado, and 2) abated appellee’s alimony obligation in light of appellant’s employment as a law clerk for a federal judge. Appellant challenges both of those rulings in this appeal. We affirm the revised visitation schedule, but we reverse the ruling that abated alimony and reinstate the original $2500 monthly alimony award.
In reviewing domestic-relations cases, this court considers the evidence de novo, but will not reverse the trial court’s findings unless they are clearly erroneous or clearly against the preponderance of the evidence. Brown v. Brown, 76 Ark. App. 494, 68 S.W.3d 316 (2002). It is well settled that the trial court maintains continuing jurisdiction over visitation and may modify or vacate such orders at any time on a change of circumstances or upon knowledge of facts not known at the time of the initial order. Stellpflug v. Stellpflug, 70 Ark. App. 88, 14 S.W.3d 536 (2000). It is also well settled under Arkansas law that reversal is warranted where a trial court modifies visitation where no material change in circumstances warrants such a change. Id. While visitation is always modifiable, our courts require a more rigid standard for modification than for initial determinations in order to promote stability and continuity for the children, and to discourage repeated litigation of the same issues. Id. The party seeking a change in visitation has the burden below to show a material change in circumstances warranting the change in visitation. Id. The main consideration in making judicial determinations concerning visitation is the best interest of the child. Brown v. Brown, supra. Important factors to be considered in determining reasonable visitation are the wishes of the child, the capacity of the party desiring visitation to supervise and care for the child, problems of transportation and prior conduct in abusing visitation, the work schedule or stability of the parties, and the relationship with siblings and other relatives. Marler v. Binkley, 29 Ark. App. 73, 776 S.W.2d 839 (1989). The fixing of visitation rights is a matter that lies within the sound discretion of the trial court. Davis v. Davis, 248 Ark. 195, 451 S.W.2d 214 (1970).
For her first point of appeal, appellant contends that the trial court erred in the manner in which it revised the visitation schedule. . Following appellant’s relocation to El Dorado, appellee requested that the trial court revise the visitation schedule for Jay. At the hearing on his motion, appellee testified among other things that Wednesday-night visitation with Jay and participation in school lunches and after-school sports were made impossible for him after the move. Following the hearing, the trial court determined that a modification in visitation was necessitated by appellant’s relocation to El Dorado, and as part of the modification ordered that it would be revised to have summer visitation with appellee begin one week after school was dismissed in El Dorado for the summer break and end ten days prior to school starting in El Dorado in the fall, with appellant having visitation during the first weekend of July. The court also allowed appellee every spring break and alternate weekends, with the exchange point to be at the Cracker Barrel restaurant in Conway.
Appellant argues that Jay’s best interests were not served by the modifications because they, in essence, split Jay in two and require him to straddle two worlds, making two lives for himself — one in the summer and one in the school year. She further contends that the revisions eliminate any flexibility in scheduling summer vacations, allow her less time than standard visitation schedules for noncustodial parents, and create a five- and six-week period in the summer when Jay will only see his mother for the one July weekend that lies between them.
It is clear, and not really disputed, that the relocation to El Dorado constituted a material change in circumstances that justified a modification to the visitation schedule. Moreover, while we might well have restructured visitation differently, particularly to prevent such long periods in the summer when Jay is away from his mother, we are not convinced that the trial court erred in this regard.
For her second point of appeal, appellant contends that the lower court erred in abating appellee’s obligation to pay alimony. We agree.
It is undisputed that as part of their original divorce proceedings, the parties agreed that the alimony amount would be modifiable, as if the court had ordered it in the first place, but that the ninety-six months also agreed upon as the term for payment of alimony would not be modifiable. Modification of an award of alimony must be based on a change in the circumstances of the parties. Herman v. Herman, 335 Ark. 36, 977 S.W.2d 209 (1998). The burden of showing such a change in circumstances is always upon the party seeking the change in the amount of alimony. Id. The primary factors to be considered in making or changing an award of alimony are the need of one spouse and the ability of the other spouse to pay. Id. A finding of changed circumstances warranting the termination of an alimony obligation is a finding of fact that will not be reversed unless clearly erroneous or clearly against the preponderance of the evidence. Id. t
Here, the parties agreed that appellee would pay appellant $2,500 a month in alimony for a period of ninety-six months. Appellee acknowledged that the alimony amount and the $3000 monthly child-support amount had been set by agreement of the parties, but he stated that they also agreed that those amounts were to be modifiable. He asserts that at the time he agreed to the alimony, he contemplated that appellant would be employed after graduating from law school. He further asserts that their discussions contemplated that she would start her own practice in Fay-etteville and that the $51,927 she is currently earning as a federal law clerk “is nowhere close” to what he thought she would be earning when he agreed on the alimony amount. He also testified about his earnings as an anesthesiologist, which apparently range from at least $224,261 to $317,715 a year.
In abating appellant’s alimony award, the trial court found that there had been a material change of circumstances because appellant “is employed as a federal law clerk and is now earning an income which exceeds the defendant’s alimony obligation.” While a change from unemployment to employment in a $51,927 per year job might well represent a change in circumstances in most cases, it does not represent a change in the circumstances contemplated by these parties at the time of their agreement. The parties clearly contemplated that appellant would become employed during the ninety-six-month period in which they agreed that appellant would receive alimony. Despite appellee’s assertion that appellant’s $51,927 salary is considerably more than what he thought she would earn, no such provision was included .in their agreement, and he presented no proof of prevailing salary rates in Fayetteville for attorneys in their first years of practice. It is clear that appellee anticipated that appellant would be practicing law the last six years of the agreed eight-year period of alimony.
We find that the trial court was clearly erroneous in abating the alimony under the circumstances presented here. We therefore reverse the trial court’s abatement of appellant’s alimony and reinstate the original amount of $2500 a month.
Affirmed in part and reversed in part.
Robbins, Griffen, Neal, and Vaught, JJ., agree with respect to the issue of visitation.
Hart, Crabtree, Baker, and Roaf, JJ., dissent with respect to the issue of visitation.
Hart, Griffen, Neal, Vaught, and Baker, JJ., agree to reverse and reinstate with respect to the issue of alimony.
Robbins, Crabtree, and Roaf, JJ., would reverse and remand with respect to the issue of alimony. | [
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John B. Robbins, Judge.
This appeal concerns the priority of liens. Appellant First National Bank of Lewisville appeals the entry of a decree of foreclosure by the Lafayette County Circuit Court that granted appellee Bank of Bradley a first lien and appellant a second lien on personal property owned by the debtors Wayne and Gail Adams d/b/a Adams Farm Equipment. We affirm.
Appellee loaned in three separate transactions with the Adamses a total principal sum of $882,855 secured by certain collateral, including farm equipment, real property, and vehicles. Some of the proceeds of these loans were used to retire a debt to appellant. Appellee’s financing statement was properly filed in both the Secretary of State’s office and the County Clerk’s office in 1994, and it contained the following description of collateral:
All equipment and machinery, including power driven machinery and equipment, furniture and fixtures now owned or hereaf ter acquired, together with all replacements thereof, all attachments, accessories, parts or tools belonging thereto or for the use in connection therewith.
All passenger and commercial motor vehicles registered for use upon public highways or streets, now owned or hereafter-acquired, together with all replacements thereof, all attachments, accessories, parts, equipment and tools belonging thereto or used in connection therewith.
All inventory, raw materials, work in progress and supplies now owned or hereafter acquired.
All accounts receivable now outstanding or hereafter arising.
All contract rights and general intangibles now in force or hereafter acquired.
All proceeds and products from any and all of the above listed property.
The financing statements identified the debtors as Adams, Carl Wayne and Gail, d/b/a Adams Farm Equipment, P.O. Box 130, Bradley, Arkansas 71826. The creditor was identified as Bank of Bradley, P.O. Box 120, Bradley, Arkansas 71826.
Subsequently, appellant entered into another line-of-credit (loan) agreement with the Adamses for $309,875.04, secured by inventory, work in progress, and materials used or consumed in the business, and it included a two-page list of 113 specific pieces of equipment. A security agreement and financing statement with these itemized attachments were filed in 1998. The debtors and their address were the same as that listed in appellee’s earlier financing statement. According to appellant’s president, there was no question about who the Adamses were, where they were, or how to locate them. The president stated that he knew Mr. Adams had been in the business of selling farm equipment for many years, he knew that the 1994 loan proceeds from appellee were used to retire an earlier debt to appellant, and that appellant’s new line of credit was used to add to the business inventory and build a new building. In fact, Mr. Adams was elected to appellant’s board of directors.
The Adamses subsequently filed for the protection of the bankruptcy court, which eventually granted appellee and appellant relief from the stay and authorized the banks to proceed in rem against the secured property. Mr. Adams resigned from his position of board member upon the Chapter 7 bankruptcy filing.
The foreclosure case that followed concerned the priority of the liens of the respective banks. There was no question but that appellee’s security interest was first in time. Appellant asserted that its lien was nonetheless superior to appellee’s because appellee failed to sufficiently describe and identify its collateral in the financing statement and security agreement in order to perfect its interest. Appellant asserted that appellee’s description was no more than a description of collateral as “all the debtor’s assets” or “all the debtor’s personal property” or words of similar import, which does not reasonably identify the collateral according to Ark. Code Ann. § 4-9-108(c) (Repl. 2001).
The trial court found (1) that appellee’s description of collateral securing the loans between it and the Adamses was sufficient to put a third party on notice, (2) that because prior loan balances with appellant were paid off by proceeds from the 1994 loan from appellee, appellant would appear to have had actual knowledge of the loan made in 1994, (3) that the president of the appellant bank could not recall whether his bank did or did not perform a U.C.C. check prior to loaning the Adamses additional funds, and (4) that had a proper search been conducted by appellant prior to entering the line-of-credit agreement, appellant would have discovered the prior security interest. This appeal resulted.
The only issue on appeal is whether the description of the collateral on appellee’s financing statement was sufficient under the Uniform Commercial Code and Arkansas law to perfect its security interest. The determination of whether a description in a financing statement is adequate is a question of fact. Security Tire & Rubber Co. v. Hlass, 246 Ark. 1113, 441 S.W.2d 91 (1969). Our standard of review in this case requires us to affirm unless the trial court’s findings of fact were clearly erroneous. Jennings v. Burford, 60 Ark. App. 27, 958 S.W.2d 12 (1997). A finding is clearly erroneous when, although there is evidence to support it, the reviewing court on the entire evidence is left with the definite conviction that a mistake was committed. Hedger Bros. Cement & Materials v. Stump, 69 Ark. App. 219, 10 S.W.3d 926 (2000). In reviewing a trial court’s findings of fact, we give due deference to the trial judge’s superior position to determine the credibility of witnesses and the weight to be accorded to their testimony. Jennings v. Burford, supra.
The relevant statute is Ark. Code. Ann. § 4-9-108 (Repl. 2001), which states in pertinent part: .
(a) Except as otherwise provided in subsections (c), (d), and (e), a description of personal or real property is sufficient, whether or not it is specific, if it reasonably identifies what is described.
(b) Except as otherwise provided in subsection (d), a description of collateral reasonably identifies the collateral if it identifies the collateral by:
(1) specific listing;
(2) category;
(3) except as otherwise provided in subsection (e), a type of collateral defined in the Uniform Commercial Code;
(4) quantity;
(5) computational or allocational formula or procedure; or
(6) except as otherwise provided in subsection (c), any other method, if the identity of the collateral is objectively determinable.
(c) A description of collateral as “all the debtor’s assets” or “all the debtor’s personal property” or using words of similar import does not reasonably identify the collateral.
The test of sufficiency of a description is whether the description does the job assigned to it — that it makes possible the identification of the thing described. Womack v. Newman Fixture Co., 27 Ark. App. 117, 785 S.W.2d 226 (1990). The better practice is to describe the collateral by types or items when a security is taken on inventory. Security Tire & Rubber Co. v. Hlass, supra. However, the description need not be such as would enable a stranger to select the property but is sufficient if it will enable third parties, aided by inquiries that the instrument itself suggests, to identify the property. Id.; see also Ward v. First Nat’l Bank of Searcy, 292 Ark. 21, 728 S.W.2d 149 (1987); Womack, supra. The adequacy of the description should be considered in the light of the subsequent creditor’s actual knowledge. Womack, supra. The Womack court noted with approval In re King-Porter Company, 446 F.2d 722, 729 (5th Cir. 1971), which stated that, “The Code helps only those who help themselves.”
Appellant tacitly acknowledges that this case is controlled by Womack v. Newman Fixture Co., supra, which would support affirming the trial court. Appellant and appellee cite Womack, supra, which held that the financing statement filed therein was sufficiendy specific to identify the equipment used at a certain restaurant in which a security interest was being taken. In Womack, the collateral was described as “all equipment used in the business known as” and the debtor was listed as “Larry D. Stafford d/b/a Chick-N-Shack, 314 North Adams, Camden, AR. 71701.” The secured party was a bank, which was listed along with the mailing address of the bank.
The trial judge in the case before us now considered the Womack case and noted it in his letter opinion, stating that the language used in appellee’s financing statement was similar but more descriptive than that used in Womack. Appellant asks us to reverse our holding in Womack and to expand the definitions in the Code so as to require descriptions of collateral to specifically identify what the property is. Appellant asserts that the dissenting opinion in Womack, which would have purportedly deemed the financing statements to be too vague, is the more reasoned approach. We decline this invitation.
The Uniform Commercial Code as enacted in Arkansas has delineated what is required, and our prior case law falls in line with the statutory construct. The Code has effectively set the onus on the subsequent lender to seek out what information it needs. 9 Anderson, Unform Commercial Code § 9-402:6 (1985), cited with approval in Womack, explains:
The main purpose of the “notice filing” provisions of the Code is to provide a public record with sufficient content to alert an interested party that there may be a prior security interest.
Further inquiry beyond the financing statement is contemplated by the Code as “the financing statement’s purpose is to merely alert the third party as to the need for further investigation, never to provide a comprehensive data bank as to the details of prior security arrangements.”
The notice system of the Code places the burden of further inquiry upon anyone seeking additional information. The fact that the financing statement is not intended to be all-informative is borne out by the fact that the statement must contain “an address of the secured party from which information concerning the security interest may be obtained. . .
When a proper filing is made, third persons are presumed to have notice of and are subject to the provisions of the security agreement. A person is charged with possessing the information that could have been discovered had he made the inquiry suggested by the filing.
The sufficiency of a financing statement must be appraised in the light of the objective of the Code system of merely giving notice. The provisions of UCC § 9-402 are designed to repudiate the highly specific disclosures that were required under former chattel mortgage statutes. If the statement gives notice that a third person may have a security interest in the collateral, and the source from which additional information may be obtained, the statement is sufficient. All that is required is a short, simple, and concise financing statement. A court should sustain a financing statement as sufficient if sufficient information can reasonably be gleaned from it to enable those desiring to reach the secured party to do so.
Id. at 447-48.
We cannot say that the trial court clearly erred in concluding that appellee’s financing statement was sufficiently specific to identify the covered goods, or in concluding that appellant failed to avail itself of the information on file to protect its interests.
We affirm.
Pittman and Crabtree, JJ., agree. | [
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John F. Stroud, Jr., Chief Judge.
John Frazer was found guilty in a bench trial of violation of the Arkansas Implied Consent Law and fined $150; the trial judge found him not guilty of driving while intoxicated. On appeal, Frazer argues that the trial court erred in admitting evidence obtained by a Springdale police officer who stopped his car in Fayetteville because the arresting officer lacked probable cause to stop and arrest him outside the officer’s territorial jurisdiction, and the officer was not in “fresh pursuit” of him when the traffic stop was made. We affirm Frazer’s conviction.
Larry Paul Davis, a night pharmacist for a Walgreens drug store in Springdale, testified that he was working on the night of November 13, 2000, and he waited on appellant and a passenger at the drive-thru window. Although Davis only observed appellant and his passenger through the drive-thru window, he stated that appellant’s behavior was such that Davis believed he was under the influence of either drugs and/or alcohol, and Davis was concerned that the potential for an accident was present. Based upon these concerns, Davis observed the make of the vehicle appellant was driving and wrote down the license-plate number. Davis then called the Springdale Police Department to report his concerns that appellant was intoxicated based upon the observations he had made at the drive-thru window. He gave the police dispatcher his name, address, telephone number, and his place of employment. He also provided a description of the vehicle and the license-plate number.
Teresa Atwell, a dispatcher for the Springdale Police Department, testified that she dispatched police officers to respond to the reported DWI driver. She said that the caller identified himself and gave a general description of the vehicle. She dispatched the color of the car, the personalized license plate, the fact that the car was leaving Walgreens, and that it was possibly headed for Fayette-ville. Although she said that she did not know who the caller was, Atwell testified that the call-taker knew.
Officer Jimmy Chatfield, a police officer with the Springdale Police Department, testified that he received the information from dispatch regarding the make and color of the vehicle, as well as the license-plate number, and that he responded to the call because he was approximately one-quarter of a mile from the Walgreens store. Chatfield traveled to the Fayetteville city limits, turned around, and began checking traffic traveling toward Fayetteville. He located the car in question, a red Honda, in the Springdale city limits traveling toward Fayetteville, and he turned around and followed it, eventually catching up with the vehicle at the Fayette- ville-Springdale city limits. He verified that the license-plate number was the same that had been reported. Chatfield said that he did not initiate a traffic stop until he was within the Fayetteville city limits, and that he only stopped the car after he was notified that it was a confirmed car, which meant that the caller had identified himself and an officer was being sent to his location to speak with him. Chatfield said that he did not witness any errant driving on appellant’s part; he stopped him only on the basis of the report from the citizen-informant. After stopping appellant, Chatfield gave him field-sobriety tests, which he failed; Chatfield then arrested appellant for DWI and transported him to the Spr-ingdale Police Department, where appellant refused to submit to a breathalyzer test.
It must first be determined whether the officer had reasonable suspicion to stop appellant’s car based upon the tip that Davis provided to the police department. Upon review of a trial court’s denial of a motion to suppress, we make an independent determination based upon the totality of the circumstances; the trial court’s ruling is reversed only if it is clearly erroneous or against the preponderance of the evidence. Mullinax v. State, 327 Ark. 41, 938 S.W.2d 801 (1997). In Bohanan v. State, 72 Ark. App. 422, 38 S.W.3d 902 (2001), this court held, citing Frette v. City of Springdale, 331 Ark. 103, 959 S.W.2d 734 (1998):
Arkansas Rule of Criminal Procedure 3.1 provides that an officer may stop and detain any person who he reasonably suspects is committing, has committed, or is about to commit a misdemeanor involving forcible injury to persons or damage to property. When reasonable suspicion is based solely on a citizen-informant’s report, the three factors in determining reliability are:
1. Whether the informant was exposed to possible criminal or civil prosecution if the report is false.
2. Whether the report is based on personal observations of the informant.
3. Whether the officer’s personal observations corroborated the informant’s observations.
Bohanan, 72 Ark. App. at 429, 38 S.W.3d at 907. Although appellant contends that this case is not governed by Frette, supra, we hold that Frette is determinative and supports a finding of probable cause in the instant case.
In Frette, our supreme court cited State v. Bybee, 884 P.2d 906 (Or. Ct. App. 1994), and Kaysville City v. Mulcahy, 943 P.2d 231 (Utah Ct. App. 1997), in affirming the conviction of a commercial truck driver for DWI when another identified truck driver saw Frette drinking beer in the cab of his truck at a commercial-truck parking lot behind the McDonald’s restaurant in Springdale and called the police department to report what he had seen. The police responded and approached Frette based solely upon this information, which led to his arrest for driving while intoxicated.
In Bybee, a convenience-store employee called the police to report a drunken driver that had just left the store, giving the license number and the direction the car was traveling on a particular street. The officer who responded to the call located the vehicle driving on the named street, and while he did not notice any unusual driving patterns, he stopped the car on the sole basis of the report that he was given from dispatch. Our supreme court cited the analysis found in Bybee for determining the reliability of a citizen-informant’s report to establish reasonable suspicion to justify a stop:
The Oregon Court of Appeals held that the officer had reasonable suspicion to justify the stop under the totality of the circumstances. When reasonable suspicion is based solely on a citizen-informant’s report, the report must contain some indicia of reliability. Three factors in determining indicia of reliability are as follows: 1) whether the informant was exposed to possible criminal or civil prosecution if the report is false; 2) whether the report is based on the personal observations of the informant; and 3) whether the officer’s personal observations corroborated the informant’s observations. The first factor is satisfied whenever a person gives his or her name to authorities or if the person gives the information to the authorities in person. With regard to the second factor, “an officer may infer that the information is based on the informant’s personal observation if the information contains sufficient detail that ‘it [is] apparent that the informant had not been fabricating [the] report out of whole cloth . . . [and] the report [is] of the sort in which in common experience may be recognized as having been obtained in a reliable way.’” The third and final element may be satisfied if the officer observes the illegal activity or finds the person, the vehicle, and the location as substantially described by the informant.
The Bybee court examined these factors and concluded that the informant’s report had sufficient indicia of reliability. First, the clerk gave his name, location, and number to the police, exposing himself to liability if the report proved false. Second, portions of the clerk’s report indicated that he had personally seen the defendant, “he came in just a minute ago,” “he’s driving,” “he was heading South on Ninth.” Finally, the officer was able to corroborate the informant’s observations; he saw a small blue convertible driving on the same street and in the same direction as reported.
Frette, 331 Ark at 118, 959 S.W.2d at 741-42 (citations omitted).
In Mulcahy, a person called the police, identified himself, and reported that a drunk person he thought was named Joe had just been at his front door, had driven off in a white car that was possibly a Toyota Célica, and was traveling east on the road in front of Davis High School. An officer who was in the vicinity of the high school saw a white car that matched the description given in the dispatch, stopped the car, smelled alcohol, and arrested the driver for DUI. In finding this case applicable in Frette, the supreme court stated:
The Mulcahy court framed the issue as “whether reasonable suspicion may be based on an informant’s report of a drunk driver, absent corroboration by a pohce officer of traffic violations or intoxications.” Like the Oregon Court of Appeals above, the Utah Court of Appeals used three factors in determining the reliability and sufficiency of the informant’s report. The first factor was the “type of tip or informant involved.” By contrast to an anonymous caller, “an identified ‘citizen-informant’ is high on the reliability scale,” and “[t]he ordinary citizen-informant needs ‘no independent proof of reliability or veracity.’” the second factor was “whether the informant gave enough detail about the observed criminal activity to support a stop.” Regarding this factor, the court noted that a tip is more rehable if the informant observed the details personally, as opposed to passing on information from a third party. The final factor considered is whether the officer’s personal observations confirm the informant’s tip. Applying these factors, the Mulcahy court noted that Olsen was an identified citizen-informer, providing information as a witness. By giving his name and address, he exposed himself to prosecution for making a false report. Second, Olsen’s description was sufficiently detailed - he reported a “drunk individual” at his front door who drove off in a white car (possibly a Célica) out of the subdivision on the main road in front of the high school. Moreover, Olsen personally observed these details. Finally, the officer corroborated the informant’s report by finding “the described vehicle going in the direction and on the highway reported by the caller,” only a few minutes after the dispatch.
Frette, 331 Ark. at 119-20, 959 S.W.2d at 742-43 (citations omitted).
Further, our supreme court also stated:
[W]e would be remiss in not first emphasizing the significant policy considerations present where a tip reports a driver who is drinking. This court has previously recognized the magnitude of the State’s interest in eliminating drunk driving in comparison to relatively minimal intrusions on motorists. In balancing the rights of a motorist to be free from unreasonable intrusions and the State’s interest in protecting the public from unreasonable danger, one court has stated that “[a] motor vehicle in the hands of a drunken driver is an instrument of death. It is deadly, it threatens the safety of the public, and that threat must be eliminated as quickly as possible. . . . The ‘totality’ of circumstances tips the balance in favor of public safety and lessens the . . . requirements of reliability and corroboration.”
Frette, 331 Ark. at 120-21, 959 S.W.2d at 743 (citations omitted).
The facts of the case at bar fit within the reasoning set forth in Frette and Bohanan. Flere, there was an identified informant, Larry Paul Davis, who personally observed appellant and his actions, and the information Davis gave to the Springdale Police Department as to the type of vehicle appellant was driving and the direction in which it was headed was able to be independently corroborated by Officer Chatfield. Therefore, under a totality-of-the-circumstances analysis, the trial judge’s denial of appellant’s motion to suppress was not clearly erroneous or against the preponderance of the evidence.
Concluding that the officer had reasonable suspicion to stop appellant based solely upon the tip received from Davis, we must next determine if the stop, which was made by Officer Chatfield outside of his territorial jurisdiction of Springdale, falls within any of the exceptions to the rule that an officer cannot arrest outside his territorial jurisdiction. Officers may arrest outside their territorial jurisdiction in four instances: (1) when the officer is in fresh pursuit; (2) when the officer has a warrant for arrest; (3) when a local law enforcement agency has a written policy regulating officers acting outside its territorial jurisdiction and when said officer is requested to come into the foreign jurisdiction; (4) when a sheriff in a contiguous county requests an officer to come into his county to investigate and make arrests for violations of drug laws. Thomas v. State, 65 Ark. App. 134, 985 S.W.2d 752 (1999) (citing Henderson v. State, 329 Ark. 526, 953 S.W.2d 26 (1997)).
The only exception possibly applicable in the present case is the first instance, when an officer is in fresh pursuit, and we hold that the officer was in fresh pursuit of appellant at the time the stop was made. Our decision in King v. State, 42 Ark. App. 97, 854 S.W.2d 362 (1993), supports this determination. Although the facts leading up to the stop in King were based upon the officer’s personal observations of appellant’s erratic driving, this court held that because the officer had the authority to stop, or to stop and arrest, the appellant before he left the jurisdiction, he remained within his bounds of authority when he followed the appellant outside his jurisdiction and then made the stop and arrest.
Likewise, we arrive at the same conclusion in the present case. In Frette, supra, our supreme court, in discussing State v. Evans, 692 So.2d 216 (Fla. Dist. Ct. App. 1997), held, “Although the investigating officer did not have all of this information given by the caller to the dispatcher, it was imputed from the dispatcher to the officer.” Frette, 331 Ark. at 114, 959 S.W.2d at 739. In the present case, based upon the information contained in the informant’s tip, all of which was imputed to Officer Chatfield, he had the authority to stop appellant when he first encountered him within the city limits of Springdale, and that authority extended outside of his territorial jurisdiction when he followed appellant out of Springdale and made the stop in neighboring Fayetteville.
Affirmed.
Neal and Baker, JJ., agree. | [
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Wendell L. Griffen, Judge.
Imogene Oliver appeals from the Arkansas Board of Review decision denying her claim for unemployment compensation benefits upon a finding that she was discharged from her job for misconduct in connection with her work. Appellant contends that the Board’s decision was not supported by substantial evidence. We hold that substantial evidence does not support the Board’s conclusion that appellant displayed disregard for her obligation to her employer. Accordingly, we reverse and remand for an order to be entered for payment of benefits.
Appellant began working at Tyson Foods in September 1998 and was employed in the production department. Under Tyson Foods’s attendance policy, an employee with six occurrences would be terminated. An employee receives an occurrence when the employee is late to work, leaves early from work, or misses work for an unexcused reason. Between November 1, 2000, and December 1, 2002, appellant was absent from work for a total of approximately seventy-eight (78) days under the Family Medical Leave Act (FMLA), which were excused absences and for which no occurrences were received. Included within these days were two periods of approved extended medical leave: July 20, 2001, through August 6, 2001, and August 14, 2001 through September 13, 2001. Flowever, appellant acquired occurrences for the following reasons and dates set out below:
1. November 27, 2000 — Late because of transportation problems — V2 occurrence
2. March 21, 2001 — Absent, non-qualified family FMLA — V2 occurrence
3. March 30, 2001 — Absent, personal reasons — 1 occurrence
4. June 15, 2001 • — • Absent, personal reasons — 1 occurrence
5. August 13, 2001 — Left early, non-qualified FMLA — 1 occurrence. Appellant either did not have documentation or was over the 480 hours allowed for FMLA.
6. September 14, 2001 — Left early to go to the doctor, non-qualified FMLA — V2 occurrence. Appellant was over the 480 hours allowed for FMLA.
7. September 20, 2001 — Late because had a doctor’s appointment, non-qualified FMLA — V2 occurrence. Appellant did not have documentation.
8. November 19, 2001 — Absent, personal reasons, illness — 1 occurrence.
On November 20, 2001, appellant was terminated for excessive occurrences, having acquired six occurrences, the last due to illness. She filed a claim for unemployment benefits with the Employment Security Department, which was denied.
Appellant appealed to the Appeal Tribunal. At the hearing, appellant testified that she had a spastic colon and that she was absent from work so much because the medication she had been taking caused her to have problems with her digestive system and with excessive diarrhea. According to appellant, the error in her medication was not discovered and corrected until she began see ing another doctor, which occurred while she was on her second extended medical leave period between August 14, 2001, through September 13, 2001. In addition, appellant testified that on November 27, 2000, she was late to work because of transportation problems; that on March 21, 2001, she left work early because of a family situation; and that on August 13, 2001, she left work early after receiving a phone call that her daughter, who was bedridden because of pregnancy complications, needed assistance.
The Appeal Tribunal reversed the Department’s determination and awarded benefits. However, the Board of Review reversed the decision of the Appeal Tribunal after finding that appellant’s absences for personal reasons and her tardiness due to lack of transportation, which caused her to exceed the maximum number of occurrences, were within her control and thus, displayed disregard for her obligation to the employer. As such, the Board concluded that appellant had been discharged from work because of misconduct in connection with the work and denied appellant’s claim for unemployment benefits.
On appeal, we review the evidence and all reasonable inferences deducible therefrom in the light most favorable to the Board’s findings, and we will affirm the Board’s decision if it is supported by substantial evidence. Hiner v. Director, Ark. Empl. Sec. Dep’t, 61 Ark. App. 139, 965 S.W.2d 785 (1998). Substantial evidence is such relevant evidence that a reasonable mind might accept as adequate to support a conclusion. Perdrix- Wang v. Director, Employment. Sec. Dep’t, 42 Ark. App. 218, 856 S.W.2d 636 (1993). Even when there is evidence upon which the Board of Review might have reached a different decision, the scope of our review is limited to a determination of whether the Board reasonably could have reached the decision it did based upon the evidence before it. Id.
Arkansas Code Annotated section ll-10-514(a)(l) (Repl. 2002) provides in relevant part that an individual will be disqualified for benefits if discharged from work for misconduct in connection with that work. For the purposes of unemployment compensation, misconduct is defined as (1) disregard of the employer’s interest; (2) violation of the employer’s rules; (3) disregard of the standards of behavior which the employer has the right to expect; and (4) disregard of the employee’s duties and obligations to the employer. Rucker v. Price, 52 Ark. App. 126, 915 S.W.2d 315 (1996). There is an element of intent associated with a determination of misconduct. Fulgham v. Director, Employment Sec. Dep’t, 52 Ark. App. 197, 918 S.W.2d 186 (1996). Therefore, for an individual’s actions to constitute misconduct sufficient to disqualify him or her from benefits, the actions must be deliberate violations of the employer’s rules or acts of wanton or willful disregard of the standard of behavior that the employer has a right to expect of its employees. Kimble v. Director, Ark. Empl. Sec. Dep’t, 60 Ark. App. 36, 959 S.W.2d 66 (1997). When an individual is discharged for absenteeism, “the individual’s attendance record for the twelve-month period immediately preceding the discharge and the reasons for the absenteeism shall be taken into consideration for purposes of determining whether the absenteeism constitutes misconduct.” Ark. Code Ann. § ll-10-514(a)(2) (Repl. 2002).
The record in this case clearly reflects that appellant’s absenteeism did not amount to misconduct which would warrant forfeiture of her rights to unemployment compensation. The majority of appellant’s absences were due to sickness, which even the Board recognized was beyond her control. On each of the days that appellant was absent, she telephoned Tyson Foods to inform them that she would not be at work. The situations for which she received two-and-one-half (2V2) of the occurrences were related to her illness or a family member’s illness and were considered unexcused because of lack of documentation or because she had exhausted all of her FMLA hours. There is no evidence that appellant’s conduct amounted to a willful disregard for the employer’s interest, an intentional disobedience of the workplace rules, or any similar actions manifesting misconduct. Therefore, we hold that there was no substantial evidence of misconduct. We reverse the Board of Review and order payment of unemployment benefits.
Reversed and remanded.
Stroud, C.J., Robbins, Bird, Neal, and Baker, JJ., agree.
Pittman, Hart, and Roaf, JJ., dissent. | [
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Olly Neal, Judge.
Appellant sued the three appellees in a negligence action. He appeals from the Faulkner County Circuit Court’s order dismissing appellees Donald Beene and the Arkansas Municipal League’s Municipal Vehicle Program (“MVP”) and the reduction of a judgment against the remaining appellee, the city of Conway, from $92,500 to $25,000. We affirm.
This case arose out of an accident that occurred when appellant’s motorcycle struck a stop sign in the city of Conway. Appellant asserted that the accident was caused by appellee Donald Beene’s negligence in the operation of a city-owned garbage truck. Appellant subsequently sued Beene and the city, who claimed to be immune from suit and suggested that appellant sue the city’s liability insurer. Appellant, believing the city’s insurer to be the MVP, sued Don Zimmerman, the MVP administrator. However, the MVP sought dismissal on the ground that it was not subject to a direct action.
The circuit judge dismissed Beene and the MVP, but he allowed the case to proceed to trial against the city of Conway. A jury awarded appellant $92,500 against the city, and judgment was entered thereon. Thirty days later, the city moved, pursuant to Ark. R. Civ. P. 60(a), to modify the judgment amount to $25,000, which it contended was its maximum liability under Arkansas’s tort immunity statutes. The trial court granted the motion and reduced the judgment accordingly. This appeal followed.
We first consider whether the trial court was correct in its use of Ark. R. Civ. P. 60(a) to reduce the judgment amount. The underlying basis for the reduction lies in our municipal tort-immunity law, which provides that municipalities and their employees who are performing official acts are immune from liability and suit in tort, except to the extent that they are covered by liability insurance. Ark. Code Ann. § 21-9-301 (Supp. 2001); Autry v. Lawrence, 286 Ark. 501, 696 S.W.2d 315 (1985). Municipalities are required to carry motor vehicle liability insurance in the minimum amounts prescribed by the Motor Vehicle Safety Responsibility Act, which, in the case of bodily injury to one person, is $25,000. See Ark. Code Ann. § 21-9-303(a) (Repl. 1996) and § 27-19-713(b)(2) (Supp. 2001). Thus, in an accident involving injury to one person, the maximum combined liability for a city and its employees is $25,000. Ark. Code Ann. § 21-9-303(b); City of Caddo Valley v. George, 340 Ark. 203, 9 S.W.3d 481 (2000). On this basis, the city asked the trial court, pursuant to Rule 60(a), to reduce the $92,500 judgment against it to $25,000.
Arkansas Rule of Civil Procedure 60(a) reads:
To correct errors or mistakes or to prevent the miscarriage of justice, the court may modify or vacate a judgment, order or decree on motion of the court or any party, with prior notice to all parties, within ninety days of its having been filed with the clerk.
Appellant argues that Rule 60(a) was not applicable in this case because it should only be used to correct the record, not to do something which, in retrospect, ought to have been done. See Harrison v. Bradford, 9 Ark. App. 156, 655 S.W.2d 466 (1983). However, Rule 60(a), as modified in 2000, allows the trial court not only to correct errors or mistakes but to “prevent the miscarriage of justice.” The term “miscarriage of justice” is not limited to clerical errors. See Lord v. Mazzanti, 339 Ark. 25, 2 S.W.3d 76 (1999); David Newbern and John Watkins, Arkansas Civil Practice and Procedure § 26-12 at 391, n. 3 (3d ed. 2002). A trial court has broad authority to correct non-clerical errors or mistakes so as to prevent the miscarriage of justice. See Lord v. Mazzanti, supra.
Had the trial court allowed a $92,500 verdict against the city of Conway to stand, a miscarriage of justice would have occurred in this case. The law clearly provides that the city’s maximum liability is $25,000. Ark. Code Ann. § 21-9-303(b) (Repl. 1996). Thus, the trial court’s use of Rule 60(a) to conform the verdict to the limits of the law was not an abuse of discretion. See Pettigrew v. Grand Rent-A-Car, 154 Cal. App. 3d 204, 201 Cal. Rptr. 125 (1984) (holding that the trial court properly used a proceeding similar to our Rule 60 to reduce a $150,000 jury verdict to the statutorily imposed maximum of $15,000).
Appellant also contends that, instead of using Rule 60 to modify the judgment, the city should have employed Ark. R. Civ. P. 59, which governs new trials. He suggests that the city used Rule 60 to circumvent the ten-day filing deadline imposed by Rule 59(b), and he cites United Southern Assurance Co. v. Beard, 320 Ark. 115, 894 S.W.2d 948 (1995), for the proposition that Rule 60 may not be used to breathe new life into an otherwise defunct new trial motion. We do not view this situation as one in which a litigant employed Rule 60 as a ruse to avoid the time constraints of Rule 59(b). Rule 60 is in fact the more logical rule to use under the circumstances of this case. The city did not want a new trial, nor did it assert any error on the part of the trial court or the jury. It simply wanted the judgment reduced to comply with the law. Further, in Thompson v. Sanford, 281 Ark. 365, 663 S.W.2d 932 (1984), the supreme court held that, if a jury enters a verdict against an immune entity in excess of that allowed by section 21-9-303, the proper procedure is for the trial court to reduce the award after the jury has entered its verdict. Although Thompson does not specify what method or rule is to be used to accomplish the reduction (and we believe the wisest course is to seek reduction immediately upon the jury announcing the verdict), we find nothing in Rule 60 that would necessarily prevent it being employed for this purpose.
As for appellant’s contention that the city waived its tort immunity by not raising it as a defense during trial, we disagree. The city asserted immunity as a defense from the time it filed its first pleading. Further, the city could not have known that the jury would render a verdict in excess of $25,000 until after the trial was completed. Thus, any motions made during trial would have been premature. See Thompson v. Sanford, supra (recognizing that the proper time for a trial court to reduce an excess award in these circumstances is after the verdict has been rendered).
Having decided that the trial court properly reduced the judgment to $25,000, we turn now to appellant’s argument that the trial court erred in dismissing Beene and the MVP from the lawsuit. We fail to see how appellant was prejudiced by Beene’s dismissal. By receiving an award of $25,000 in damages, appellant has obtained the maximum amount available against the city and Beene combined. Ark. Code Ann. § 21-9-303(b) (Repl. 1996). Although appellant claims that Beene could be held personally liable in this situation, we disagree. Appellant cites several cases in which liability was imposed on a state employee for negligent operation of a motor vehicle. E.g., Grimmett v. Digby, 267 Ark. 192, 589 S.W.2d 579 (1979); Kelly v. State, 265 Ark. 337, 578 S.W.2d 566 (1979). However, those cases were rendered ineffective when the legislature passed Ark. Code Ann. § 19-10-305(a) (Supp. 2001), granting state employees a similar immunity to that already enjoyed by municipal employees under section 21-9-301. At the time of the accident giving rise to the suit in this case, the municipal tort-immunity statute was in full force and effect. Therefore, Beene could not be held personally fiable for a negligent act committed in the performance of his official duties. See City of Little Rock v. Weber, 298 Ark. 382, 767 S.W.2d 529 (1989); Autry v. Lawrence, supra.
Regarding the MVP’s dismissal, we likewise see no prejudice to appellant. The MVP’s obligation to pay the city’s damages was limited by its own terms to $25,000. Thus, appellant has not shown how the outcome of his case would have been affected by the MVP remaining in the lawsuit. But, in any event, we believe the MVP was properly dismissed from the action.
Appellant named the MVP as a defendant based on the following portion of section 21-9-303(c):
Any person who suffers injury or damage to person or property caused by a motor vehicle operated by an employee, agent, or volunteer of a local government covered by this section shall have a direct cause of action against the insurer if insured, or the governmental entity if uninsured, or the trustee or chief administrative officer of any self-insured or self-insurance pool. Any judgment against a trustee or administrator of a selffinsurance pool shall be paid from pool assets up to the maximum limit of liability as herein provided.
(Emphasis added.) The MVP argued successfully below that a direct action against it was not allowed by the above-quoted statute because it was not an “insurer.” We need not go into the details of whether the MVP was an insurer or other entity mentioned in the above-quoted statute because, even if it was, it was not subject to a direct action in this case.
Reading section 21-9-303(c) out of context could lead a tort victim to believe that he was entitled to sue a municipality’s insurer directly. However, such a reading would be contrary to the intent of Act 47 of the Third Extraordinary Session of 1989, from which the statute is derived, and other subsequent acts. Act 47 was passed to clarify that, if a municipality carries insurance in excess of the $25,000 limits required by law, then the maximum liability of the insurer would be the actual policy limits. Thus, the focus of the act is the direct and independent liability of an insurer who provides coverage greater than the $25,000 limit. The relevant part of the act, which is not divided into subsections (b) and (c) as is section 21-9-303, therefore should be interpreted to allow a direct action against an insurer or pool administrator only when the insurer or pool administrator may be hable for an amount in excess of the $25,000.
Such an interpretation is harmonious with the intent of a later act, Act 292 of 1993. There, the legislature amended the tort-immunity statutes for the express purpose of prohibiting direct actions against insurers. An earlier act, Act 542 of 1991, had provided that municipalities were immune from damages and from suit. Act 292 amended the law to clarify that this did not mean that a direct action could be had against the municipality’s insurer.
In light of the foregoing analysis, we conclude that the trial court did not err in dismissing the MVP from the lawsuit. Although the trial court did not apply the same line of reasoning we do on this issue today, the trial court may be affirmed if it is correct for any reason. Reed v. Smith Steel, Inc., 77 Ark. App. 110, 78 S.W.3d 118 (2002).
Finally, we reach appellant’s argument that section 21-9-303(b), which caps the municipality’s liability at $25,000, is unconstitutional because it “gives no incentive to a governmental entity to fairly settle a case, since their liability is capped” and it “mandates maximum liability for a municipality without setting any guidelines or consequences for settlement of valid claims.” The constitutional provision that Fritzinger contends has been violated is Ark. Const, art. 5, § 32, which reads in pertinent part: “[N]o law shall be enacted limiting the amount to be recovered for injuries resulting in death or for injuries to persons or property. . . .”
There is a strong presumption of constitutionality attendant to every legislative enactment, and all doubt concerning it must be resolved in favor of constitutionality. Arnold v. Kemp, 306 Ark. 294, 813 S.W.2d 770 (1991). If it is possible for the courts to construe an act so that it will meet the test of constitutionality, we not only may, but should and will do so. Id. Further, the party challenging a statute has the burden of proving it unconstitutional. Id.
We note at the outset that the trial court did not rule on the constitutionality of section 21-9-303. To preserve an argument for appeal, even a constitutional one, the appellant must obtain a ruling below. Doe v. Baum, 348 Ark. 259, 72 S.W.3d 476 (2002). Even if the issue in question was actually argued to the trial court, a ruling must still be obtained to preserve the issue on appeal. See Morrison v. Jennings, 328 Ark. 278, 943 S.W.2d 559 (1997). Also, appellant does not explain how he was prejudiced by the city’s failure to settle the claim, especially in light of the fact that he has been awarded a judgment against the city in the maximum amount allowed by law. No reversal can be obtained where no prejudice can be determined. See generally Williams v. State, 327 Ark. 97, 938 S.W.2d 547 (1997); McCoy Farms, Inc. v. J & M McKee, 263 Ark. 20, 563 S.W.2d 409 (1978), cert. denied, 439 U.S. 862 (1978). Moreover, appellant cites no authority nor does he make any convincing argument for the proposition that the Arkansas Constitution requires municipalities or their insurers to have guidelines for settlement of claims. Where no citation to authority or convincing argument is offered, we may decline to address the issue on appeal. See City of Van Buren v. Smith, 345 Ark. 313, 46 S.W.3d 527 (2001).
For the foregoing reasons, we affirm the orders appealed from.
Affirmed.
Gladwin and Roaf, JJ., agree.
The MVP is a self-funded program which, within specified limits, pays all sums a participating city or a city employee must legally pay as damages because of bodily injury, death, or property damage involving a covered municipal vehicle.
If the merits were reached, however, we would decline to hold section 21-9-303 unconstitutional on the basis urged by appellant. Our supreme court has held that the legislature may constitutionally limit a citizen’s right to recover damages from a municipality. See Thompson v. Sanford, supra. Also, in White v. City of Newport, 326 Ark. 667, 933 S.W.2d 800 (1996), the supreme court specifically held that the concept of municipal tort immunity did not violate article 5, section 32. | [
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John Mauzy Pittman, Judge.
This is a personal-injury/ case on remand from the Arkansas Supreme Court. The supreme court has directed us to consider the case on its merits after it decided on certification that the judgment appealed from was a final one. D’Arbonne Constr. Co. v. Foster, 348 Ark. 375, 72 S.W.3d 862 (2002). In this appeal, the sole issue is the sufficiency of the evidence to support the award of punitive damages. We affirm.
On November 9, 1999, appellant Lee Earnest Johnson was driving a logging truck for appellant D’Arbonne Construction Company (D’Arbonne) from Crossett east on Highway 82. A trailer was riding “piggy back” on the truck. At the same time, defendant Wayne Canley (not a party on appeal) was also traveling east on the same highway. James Tony Culbreath was driving west on Highway 82 with his wife, appellee Sherri Culbreath, his minor daughter Keeli Mercedes Culbreath, and appellee Sylvia Foster as passengers. Johnson crossed into the westbound lane and struck the Culbreath vehicle head-on. James Tony Culbreath and Keeli Mercedes Culbreath died as a result of injuries sustained in the collision. Sherri Culbreath and Foster sustained extensive personal injuries. Sherri Culbreath, individually and as administratrix of the estates of James Tony Culbreath and Keeli Mercedes Cul-breath, filed personal injury and wrongful death actions against appellants (D’Arbonne and Johnson), Canley, and defendant Cas-key Terral, individually and d/b/a Terral Logging Company (not a party to this appeal). Appellee Foster filed a separate action for her personal injuries. It was alleged that D’Arbonne and Johnson were acting as agents or in a joint enterprise with Terral.
The cases were consolidated and tried before a jury, which found both D’Arbonne and Johnson negligent and assigned each of them fifty percent of the fault. The jury also found that appellants were not acting as agents of Terral at the time of the accident. The jury returned compensatory-damage awards of $175,000 to the estate of Keeli Mercedes Culbreath, $267,000 to the estate of James Tony Culbreath, $50,000 to appellee Sherri Culbreath, and $225,000 to appellee Foster. In addition, the jury awarded separate punitive-damage awards of $120,000 to the estate of Keeli Mercedes Culbreath, $180,000 to the estate of James Tony Cul-breath, $50,000 to appellee Sherri Culbreath, and $50,000 to appellee Foster.
Appellants moved for a directed verdict on the issue of the punitive damages, alleging that there was insufficient evidence to submit that claim to the jury. The present appeal arose from the denial of that motion. The only damage awards involved in this appeal are the $120,000 punitive-damages award made in favor of the estate of Keeli Mercedes Culbreath, the $180,000 punitive-damages award made in favor of the estate of James Tony Cul-breath, the $50,000 punitive-damages award made in favor of appellee Sherri Culbreath, and the $50,000 punitive-damages award made in favor of appellee Sylvia Foster and against appellants jointly and severally. Appellants contend that the trial court erred in refusing to grant the motion for a directed verdict on the issue of the punitive damages.
When we review an award of punitive damages, we consider the extent and enormity of the wrong, the intent of the party committing the wrong, all the circumstances, and the financial and social condition and standing of the erring party. United Ins. Co. of Am. v. Murphy, 331 Ark. 364, 961 S.W.2d 752 (1998). An instruction for punitive damages may be given when there is evidence that a party likely “ ‘knew or ought to have known, in the light of the surrounding circumstances, that his conduct would naturally or probably result in injury and that he continued such conduct in reckless disregard of the consequences from which malice could be inferred.’” McLaughlin v. Cox, 324 Ark. 361, 371, 922 S.W.2d 327, 333 (1996) (quoting Allred v. Demuth, 319 Ark. 62, 890 S.W.2d 578 (1994)). Punitive damages are justified only when the defendant acts wantonly or with such conscious indifference to the consequences of his acts that malice may be inferred. J.B. Hunt Transp., Inc. v. Doss, 320 Ark. 660, 899 S.W.2d 464 (1995).
Because the boundary between gross negligence and conduct that can be characterized as willful and wanton is indistinct, it is necessarily subjective in part. The twofold intent behind punitive damages is to punish the wrongdoer and to exemplify such conduct for others to note. Alpha Zeta Chapter of Pi Kappa Alpha Fraternity v. Sullivan, 293 Ark. 576, 740 S.W.2d 127 (1987). Negligence alone, however gross, is not enough to sustain punitive damages. Id. There must be some element of wantonness or such a conscious indifference to the consequences that malice might be inferred. In other words, in order to warrant a submission of the question of punitive damages, there must be an element of willfulness or such reckless conduct on the part of the defendant as is equivalent thereto. Id. Whether a vehicle is being operated in such a manner as to amount to wanton or willful conduct in disregard of the rights of others must be determined by the facts and circumstances in each individual case. Lawrence v. Meux, 282 Ark. 512, 669 S.W.2d 464 (1984); Ellis v. Ferguson, 238 Ark. 776, 385 S.W.2d 154 (1964); Splawn v. Wright, 198 Ark. 197, 128 S.W.2d 248 (1939).
Our standard of review of the denial of a motion for directed verdict is whether the jury’s verdict is supported by substantial evidence, which is evidence that goes beyond suspicion or conjecture and is sufficient to compel a conclusion one way or the other. Barnes, Quinn, Flake & Anderson, Inc. v. Rankins, 312 Ark. 240, 848 S.W.2d 924 (1993). This includes the issue of punitive damages. Carroll Elec. Coop. Corp. v. Carlton, 319 Ark. 555, 892 S.W.2d 496 (1995). It is not our province to try issues of fact; we simply review the record for substantial evidence to support the jury’s verdict. John Cheeseman Trucking, Inc. v. Dougan, 313 Ark. 229, 853 S.W.2d 278 (1993). In determining whether there is substantial evidence, we view the evidence in the light most favorable to the party against whom the verdict is sought and give the evidence its strongest probative force. Integon Indent. Corp. v. Bull, 311 Ark. 61, 842 S.W.2d 1 (1992).
The evidence bearing on the issue of punitive damages relates to appellant Johnson’s driving record, Johnson’s statements to third parties concerning the condition of the truck, and the general condition of the truck and its maintenance record. Viewing this evidence, as we must, in the light most favorable to the appellees, the record reflects that Johnson, with twenty years’ driving experience, was speeding at the time of the accident and was too close to the Canley vehicle. Johnson received five citations for speeding or defective equipment within five years prior to the accident, and D’Arbonne paid the citations out of Johnson’s paycheck.
Trooper Fuller spoke with Johnson while investigating the accident, and Johnson stated that there were problems with the truck. The trooper suspected that there may have been problems with the brakes. Johnson told bystanders at the scene that he “couldn’t hold the truck on the road” and that he “told ‘em and told ‘em to get the walking beam fixed.”
The truck involved in the accident had approximately 500,000 miles on it at the time of the accident. Johnson made daily inspections of the truck and adjustments to the brakes and to the slack adjustor. The company had a weekly schedule for main tenance to be performed on its vehicles, usually Fridays and Saturdays. This maintenance was performed by the company mechanic. The mechanic, Pancho Hernandez, would have someone record the work performed in a log. The last log entry was August 1, 1999, the day Hernandez left D’Arbonne. The last log entry showing brake work, however, was in 1994.
Lewis Elston testified as an expert concerning the mechanical condition of the truck. Elston inspected the truck twice. He looked at all the wheels and found that one wheel seal was leaking and had been doing so for a while. He found that the No. 2 axle had been backed off and that it appeared that it had been backed off for some time. The cam bushings and slack adjustor to that brake were worn. The bushings and the cam were both worn. He found oil leaking in another wheel. Elston opined that it had been leaking for a while because there was oil residue inside the wheel and the hub did not have any oil, that the oil leak could cause that brake to lock up in an emergency, and that this oil leak could have begun up to two or three years prior to the accident. The slack adjustor had wear slack in it and was not supposed to be in this condition. Elston further opined that the manner in which the brakes were adjusted would cause the truck to pull to the left. Elston testified that he would not put a truck in such a condition into service because it would be dangerous. It was Elston’s opinion that the condition of the walking beams, the brakes, and everything else he found wrong with the truck contributed to the accident in that the combination of defects caused the truck to pull to the left.
David Thomas also testified as an expert log-truck mechanic. Thomas noticed that a quick-release valve was missing from the front axle and that an air line had been spliced together with quick-disconnects. He also noted that there was nothing but the bracket where the quick-release had broken off. Thomas also found slack in the U-joint, which could affect steering in an emergency situation, and wear and dry rot on the walking beams. He also testified that the brake drums were badly worn and that the brake shoes were grooved to meet the drums as a result of a lack of maintenance. Thomas found that the right second axle brake had been backed off with a slack adjustor to a point where the brake shoes would not touch the drum, effectively disabling that brake. Thomas stated that the brakes were so worn that they could not function properly, and that brakes in such a condition will “cam over” and lock up when applied, rendering the truck immobile. He stated that no one making weekly or regular inspections of this truck could have missed this defect, and opined that the brakes had been intentionally backed off in lieu of proper maintenance to prevent camming over.
Appellants contend that, at most, the evidence in the present case would show negligence on their part, and rely on National By-Products, Inc. v. Searcy House Moving Co., 292 Ark. 491, 731 S.W.2d 194 (1987), for the proposition that gross negligence will not support an award of punitive damages. We think that the facts of the present case are sharply distinguished from those of National By-Products. In the latter case, Foley, a driver for National, was late leaving Batesville, and his truck weighed 480 pounds over the legal limit. Foley had received six citations in the prior year for driving an overweight truck, and the appellant had paid all of the citations. One of National’s employees testified that the company had a disciplinary procedure for drivers who got an excessive number of overweight tickets, and he testified that Foley had an excessive number of such tickets but admitted that Foley had not been cautioned or disciplined for driving an overweight truck. Foley exceeded the 55-miles-per-hour speed limit while going downhill. He got so close to one car that all the driver of the car could see in his rearview mirror was the grill of Foley’s tractor. He got extremely close to another car while tailgating downhill. Finally, he came around a curve at the crest of a small hill and had 804 feet of clear visibility to the bridge structure where the accident occurred. Searcy House Moving was moving a house north on the same highway. The house, which was sitting on a trailer at the bridge, was 17 feet high, 28 feet wide, and 36 feet long and, because of its added height, could be seen from about 900 feet away. As Foley sped downhill at 70 miles per hour, he ran into the rear of the decedent’s car and then struck the appellee’s rig and the house. Foley either did not apply his brakes, or he applied them but they did not function propedy. The appellee’s witnesses said that Foley was going 60 to 70 miles per hour and made no effort to stop even though he went past a vehicle that had a flashing warning light. They testified that his brake lights did not come on, the tires did not skid, there was no smoke from either the brakes or tires, and there were no skid marks. Flowever, the appellee’s expert brake witness testified that Foley probably did apply his brakes just before the accident but that the brakes were not working properly. While the expert did not testify about standards in the industry, he did testify that the Ryder Truck Company checks truck brakes every 8,000 miles. One of National’s employees testified that the company policy was to adjust the trailer brakes once a month but that the brakes on this trailer had not been adjusted for three-and-one-half months and the tractor brakes had not been opened for a complete inspection for almost six months, although they were adjusted about six weeks before the accident. He further testified that National conducted an internal inspection of the brakes every 50,000 miles as recommended by the American Trucking Association and, in addition, the drivers conducted a daily inspection. There was no evidence that National had any knowledge that the brakes were faulty.
The supreme court reversed the award of punitive damages, stating:
The foregoing facts do not show that appellant, either by its own policies or through the actions of its agent Foley, intentionally acted in such a way that the natural and probable consequence was to damage appellee’s property. Nor do the facts show that appellant knew that some act of negligence was about to cause damage, but still continued to cause that damage.
Id. at 495, 731 S.W.2d at 196-197.
Nor are the facts of the present case similar to those presented in Carroll Electric Cooperative, supra, where a driver struck a guy wire attached to a power pole belonging to the appellant cooperative, causing a power outage. A crew was sent to the scene to assess the damage to the power pole. The crew observed the poles and found no damage to them. After inspecting the poles with flashlights, the crew decided not to replace the guy wire and that it was safe to restore the power to the line served by the pole to which the guy wire had been attached. Later, a wire supported by that pole came down at some point and energized a nearby fence. The fence ran close to a liquid-propane gas tank outside the Carlton home, which was about an eighth of a mile away from the accident scene. Power arced from the fence to the tank and ran from the tank up a pipe to a clothes dryer in the Carlton home. The fire was determined to have begun sometime later at the clothes dryer.
The trial court directed a verdict in favor of the cooperative on the issue of punitive damages. The supreme court afflrmed the directed verdict on the issue of punitive damages, stating:
There was no evidence tending to prove that CECC acted with actual malice. Nor was there evidence of conscious indifference to the consequences of its actions. The jury was justified in finding negligence in direct connection with the incident and perhaps in the general lack of any inspection program more rigorous than casually viewing the lines as CECC workers drove past. That, however, does not satisfy the criteria for punitive damages. Mere negligence, or even gross negligence, is not sufficient to justify punitive damages.
Id. at 564, 892 S.W.2d at 501 (citations omitted).
Appellants in the present case argue that the evidence of poor maintenance of the truck presents a mere question of negligence and will not support the award of punitive damages. We do not agree. Here, there was not only evidence of gross negligence in the failure to maintain the braking and control systems of the truck and in permitting Johnson to drive it, but there was also evidence that the brakes were intentionally disabled so that the truck could continue to operate, after a fashion, despite the lack of maintenance. An award of punitive damages is proper where there is evidence that the defendants “knew or ought to have known, in the light of the surrounding circumstances, that his conduct would naturally or probably result in injury and that he continued such conduct in reckless disregard of the consequences from which malice could be inferred.” McLaughlin v. Cox, 324 Ark. at 371, 922 S.W.2d at 333. See also HCA Health Servs. v. National Bank of Commerce, 294 Ark. 525, 745 S.W.2d 120 (1988); National ByProducts, supra. We think that the evidence in the present case amply satisfies this requirement, and we hold that the trial court did not err in denying appellants’ motion for a directed verdict as to punitive damages.
Affirmed.
Robbins, Biro, Griffen, and Baker, JJ., agree.
Stroud, C.J., Hart, Neal, and Roaf, JJ., dissent. | [
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Wendell L. Griffen, Judge.
Ruby J. Sanders challenges the decision of the Arkansas Employment Security Department Board of Review, which denied her claim for unemployment benefits upon the finding that she voluntarily left her last work without good cause connected with the work pursuant to Ark. Code Ann. § 11-10-513 (Repl. 2002). Because we cannot tell from the record upon what the Board of Review based its decision, we reverse and remand for further findings.
Sanders worked for Harry K. Dougherty, Inc., in the Main Street Furniture Store in Jacksonville. After about five months of employment, on or about March 14, 2002, Sanders told the store manager, Jim Henderson, that she had applied for work with a competitor because business was slow. The following day, Henderson told her to leave immediately, rather than to wait for the end of a notice period or whenever the competitor might call her. Before the Arkansas Appeal Tribunal, Henderson testified that he decided overnight to let Sanders go after she had told him that she had applied at a competitor’s store. Henderson based his reason for discharging Sanders on “general consensus . . . that if you have someone that’s in sales and they give you a notice that it’s, uh, unless you need them to work, that it is better to go ahead and let them go because, uh, there’s several reasons, prices, money that changes hands, different things.” Apparently, Sanders did not give a notice.
The hearing officer denied Sanders benefits because she found that Sanders quit to work for a competitor. She further found that management accelerated Sanders’s resignation by telling her to leave March 15, 2002. She also stated that it was not shown that the average able-bodied worker would be. impelled to give up employment in similar circumstances. Therefore, the hearing officer concluded that Sanders left work voluntarily without good cause connected with the work. Sanders appealed to the Board of Review, which affirmed the decision below, adopting the “findings of fact and conclusions of law” of the Appeal Tribunal. This appeal followed.
In employment security cases, we review the findings of fact of the Board of Review in the light most favorable to the prevailing party, only reversing where the findings are not supported by substantial evidence. Niece v. Director, Emp. Sec. Dep’t, 67 Ark. App. 109, 992 S.W.2d 169 (1999). Substantial evidence is such evidence that a reasonable mind would find adequate to support a conclusion. Id. The credibility of the witnesses and the weight to be accorded their testimony are matters to be resolved by the Board of Review. Id., Even when there is evidence upon which the Board might have reached a different decision, the scope of the judicial review is limited to a determination of whether the Board could reasonably reach its decision upon the evidence before it. Id. However, whether the findings of the Board of Review are supported by substantial evidence is a question of law properly before this court. St. Vincent Infirmary v. Arkansas Emp. Sec. Div., 271 Ark. 654, 609 S.W.2d 675 (Ark. App. 1980).
A claimant is disqualified for benefits if he, voluntarily and without good cause connected with the work, left his last work. Ark. Code Ann. § 11-10-513(a)(1) (Repl. 2002). Therefore, we need adequate findings of fact to be able to tell whether substantial evidence supports the Board of Review’s determination. See Ferren v. Director, 59 Ark. App. 213, 956 S.W.2d 198 (1997); Bryant v. Arkansas Pub. Serv. Comm’n, 45 Ark. App. 56, 871 S.W.2d 414 (1994). Courts cannot perform reviewing functions assigned to them on review of state agency decisions in the absence of adequate and complete findings of the agency and all essential elements pertinent to determination. Bryant v. Arkansas Pub. Serv. Comm’n, supra.
In the case at bar, we cannot determine from the existing record the precise basis for the Board of Review’s decision. A reasonable opportunity for the presentation of evidence on the issues controlling the substantial rights of the parties in this matter may have existed at the hearing before the Appeal Tribunal. See Ark. Code Ann. § ll-10-524(b)(l), -526(a)(1). However, the Board of Review did not render sufficient findings of fact on the existing record that enable us to review the Board of Review’s basis for its opinion. We cannot reach the issue of whether the acceleration of Sanders’s departure from her employment constitutes an involuntary termination that would entitle her to employment security benefits.
Therefore, we reverse and remand for further findings upon the existing record.
Robbins and Crabtree, JJ., agree. | [
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Robert J. Gladwin, Judge.
This case was an attempt by appellee, Charles Veith, to “pierce the corporate veil” and hold the majority shareholders personally liable for money loaned to the corporation after appellee was terminated as an officer and director of the corporation. The trial court decided that appellee would be allowed to pierce the corporate veil, though specifically finding that there was no fraud, illegality, or overreaching by appellants. Appellants Donald Rhodes and Joy Janes bring this appeal and argue that the trial court erred in denying their motion for a directed verdict on the issue of piercing the
corporate veil. Because we find, under the circumstances of this case, no basis for piercing the corporate veil, we reverse and dismiss.
Appellee and appellant Rhodes were both consultants on safety and OSHA compliance issues and knew of each other from a prior project on which they both had worked. Rhodes was president of a company called COMCO Safety Services of California (COMCO California). Janes provided administrative and bookkeeping services to the company on a. contract basis. In November 1998, appellee met with appellants in California to discuss appellee’s proposal that they do business together in Arkansas. The proposal called for setting up an Arkansas corporation and taking over clients from appellee’s then-employer, EDSI, because the attorney general was investigating EDSI. The parties agreed that appellants would receive 55% of the shares in the corporation, appellee would receive 35%, and 10% would be unissued. COMCO California would provide administrative services such as accounting, billing, bookkeeping, and payroll and provide training materials and programs. Appellee was to serve as president of the new corporation, in charge of day-to-day operations. Appellee also agreed to loan the new corporation up to $30,000 for start-up funds. An Arkansas corporation, COMCO Safety Consulting, Inc., was formed by filing articles of incorporation with the Arkansas Secretary of State on December 10, 1998. Appellants and appellee were listed as the officers, directors, and shareholders of this corporation.
The new corporation started operations in December 1998. Rhodes made a visit to Arkansas that same month and found operations running smoothly. In February 1999, Rhodes made another visit to Arkansas and found the company in turmoil. The sales staff did not have the appropriate sales brochures, and employees were not being timely paid. Appellants attended a board meeting, which was called without notice to appellee. During the meeting, appellee was terminated by letter dated February 16, 1999, because appellee was not meeting his projections and not performing his duties as a business manager or as a supervisor of sales people.
Appellee filed suit alleging that appellants, COMCO Arkansas and COMCO California, had breached appellee’s contract and interfered with his business expectancy. Appellee also alleged that the corporate veil should be pierced in order to hold appellants personally liable. Appellee sought compensatory damages of $28,033.78 for money loaned to the business and $4,004 for his deferred salary. Appellee also sought punitive damages of $500,000. Appellants answered and denied the complaint’s allegations.
At trial, appellants moved for a directed verdict at the close of appellee’s proof and again at the close of all the evidence on the issue of piercing the corporate veil. Appellants argued that there was no evidence that appellee was a “third party” or that appellants fraudulently or illegally used the corporate form. The trial court denied the motion, ruling that no showing of fraud or illegality is needed in order to pierce the corporate veil. The trial court found no evidence of an improper' motive, of an illegal objective, or of overreaching by appellants. The trial court did find that all parties ignored the corporate form by being under-capitalized and not having corporate records. The trial court then directed a verdict in favor of appellee, allowing the corporate veil to be pierced. The case was submitted to the jury on two interrogatories. The jury first found that there was a contract between appellee and COMCO Arkansas. Second, the jury found that COMCO Arkansas breached that contract. The jury assessed appellee’s damages at $30,000, which the trial court reduced to $18,330 by applying appellee’s percentage of ownership of COMCO Arkansas. The trial court awarded appellee attorney’s fees of $4,500. This appeal followed.
Appellants raise three arguments on appeal. Their first contention is that the trial court erred in denying their motion for a directed verdict on the issue of piercing the corporate veil because appellee is not a “third party” entitled to pierce the corporate veil. We find this point dispositive and decline to address the other issues.
It is a nearly universal rule that a corporation and its stockholders are separate and distinct entities, even though a stockholder may own the majority of the stock. First Comm’l Bank v. Walker, 333 Ark. 100, 969 S.W.2d 146 (1998). In special circumstances, the court will disregard the corporate facade when the corporate form has been illegally abused to the injury of a third party. Enviroclean, Inc. v. Arkansas Pollution Control & Ecology Comm’n, 314 Ark. 98, 858 S.W.2d 116 (1993); Don G. Parker, Inc. v. Point Ferry, Inc., 249 Ark. 764, 461 S.W.2d 587 (1971). The conditions under which the corporate entity may be disregarded or looked upon as the alter ego of the principal stockholder vary according to the circumstances of each case. Winchel v. Craig, 55 Ark. App. 373, 934 S.W.2d 946 (1996). The doctrine of piercing the corporate veil is founded in equity and is applied when the facts warrant its application to prevent an injustice. Humphries v. Bray, 271 Ark. 962, 611 S.W.2d 791 (Ark. App.1981). Piercing the fiction of a corporate entity should be applied with great caution. Banks v. Jones, 239 Ark. 396, 390 S.W.2d 108 (1965); Thomsen Trust v. Peterson Ent., 66 Ark. App. 294, 989 S.W.2d 934 (1999). The issue of whether the corporate entity has been fraudulently abused is a question for the trier of fact, and the one seeking to pierce the corporate veil and disregard the corporate entity has the burden of proving that the corporate form was abused to his injury. See National Bank of Commerce v. HCA Health Servs. of Midwest, Inc., 304 Ark. 55, 800 S.W.2d 694 (1990).
The doctrine of “piercing the corporate veil” does not apply to claims asserted by corporate shareholders; it is only available to third parties who deal with the corporation. Shipp v. Bell & Ross Enters., Inc., 256 Ark. 89, 505 S.W.2d 509 (1974); see also Jones v. Teilborg, 151 Ariz. 240, 727 P.2d 18 (Ct. App. 1986); Sikora v. Pinebrook Builders, Inc., 507 So. 2d 1167 (Fla. Dist. Ct. App. 1987); In re Rehabilitation of Centaur Ins. Co., 158 Ill. 2d 166, 632 N.E.2d 1015 (1994); Community Care Ctrs., Inc. v. Hamilton, 774 N.E.2d 559 (Ind. Ct. App. 2002); Sturkie v. Sifly, 280 S.C. 453, 313 S.E.2d 316 (Ct. App. 1984). In another context, workers’ compensation, “third parties” do not include corporate officers, directors, or shareholders. See Ark. Code Ann. § 11-9-105(a) (2002); Neal v. Oliver, 246 Ark. 377, 438 S.W.2d 313 (1969).
AppeEee argues that he is a “third party” that is aUowed to pierce the corporate veil because he was never issued stock. The “Consent to Action Taken in Lieu of Organization Meeting” is signed by appeUee as a stockholder and lists appeEee as a director and president of the corporation. The document also sets out each party’s proportionate interest in the corporation. No stock was issued to appeEees or appeUants. Further, there is no evidence that appeUee asked for delivery of the stock certificates. The corporate existence cannot be lightly regarded by its stockholders, and they wiU not be permitted to subvert the corporate being at their whim for one advantage and disregard it for an inconsistent advantage. Shipp v. Bell & Ross Enters., supra.
AppeEee admitted at trial that he was president of COMCO Arkansas in charge of such day-to-day operations as setting up the office, hiring employees, and generating sales. Yet, in his next sentence, appeEee stated that he performed no functions as a corporate officer. AppeEee testified that he made payroE for the employees and paid expenses such as trash disposal and office equipment. He also testified that he opened a corporate bank account. AppeEee admits that the reason he seeks to pierce the corporate veE is so he can go after appeEants’ assets in order to satisfy the judgment. Under these circumstances, we do not beheve that appeEee is a “third party” entitled to pierce the corporate veil.
Because the trial court found no other basis for holding appeEants personaEy Hable for the corporation’s actions, we reverse and dismiss the case.
Reversed and dismissed.
Neal and Roaf, JJ., agree.
The notice of appeal and amended notice indicate that COMCO Safety Consulting, Inc. (COMCO Arkansas), is also a party to the appeal. However, no arguments for reversal are made on behalf of the corporation. | [
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Conley Byrd, Justice.
At issue here is the sufficiency of the description of real estate in a mortgage to have priority over a federal tax lien. Federal Law, 26 U.S.C. § 6323, recognizes that a federal tax lien is not superior to perfected security interests. The decisions interpreting the federal law point out that a competing non-federal lien is not perfected and choate until it is definite as to (1) the identity of the lienor, (2) the property subject to the lien, and (3) the amount of the lien, 94 ALR 2d 748, 755 § 3.
The Arkansas law with respect to the sufficiency of description is stated by Judge Lemley in United States v. Westmoreland Manganese Corp., 134 F. Supp. 898 (E.D. Ark. 1955), as follows:
“It is a well settled principled Arkansas law that a mortgage will not be held void for uncertainty, even as to third persons, where by any reasonable construction it can be sustained; and where the description used furnishes a key whereby a person, aided by extrinsic evidence, can ascertain what property is covered, such description is sufficient. ...”
Other laws bearing upon the issues here are Ark. Stat. Ann. § 17-1201 (Repl. 1968), which authorizes the subdivision of lands and the recordation of the plats thereof, and Ark. Stat. Ann. § 17-1203 (Repl. 1968), which provides that conveyances made according to the descriptions platted and recorded will be sufficient.
It is admitted that the federal tax lien was filed and a levy made upon the property subsequent to the mortgage to The Caraway Bank. That mortgage described the property as follows:
“A part of the SE!4 of SW!4 of Sec. 21, a part of the NE Va of NW Va of Sec. 28 all in Township 18 N., Range 5 W., all in Hidden Valley, more properly defined as follows:
Beginning at the Northeast Corner of Lot 21, Block 1, West Lake Shore Addition, thence North 84 degrees, 32 minutes West, 201 feet, thence North 80 degrees, 21 minutes West, 173 feet to the Southeast Corner of Lot 25, Block 3 of Ridgecrest Addition, thence North 10 degrees, 48 minutes West, 312 feet to the Northeast Corner of Lot 28, Block 3, of Ridgecrest Addition, thence South 79 degrees, 12 minutes West, 150 feet to the Northwest Corner of Lot 28, Block 3 Ridgecrest Addition, thence North 88 degrees, 32 minutes and 30 seconds West, 30.40 feet, thence North 7 degrees, 53 minutes East, 187.60 feet, thence North 34 degrees, 33 minutes East, 433 feet, thence North 5 degrees, 55 minutes East, 44.96 feet, thence South 85 degrees, 42 minutes East, 40 feet to the Northwest corner of Lot 8, Block 1 of Ridgecrest Addition, thence South 26 degrees, 47 minutes East, 476 feet to the Southwest Corner of Lot 14, Block 1, of Ridgecrest Addition, thence South 19 degrees, 32 minutes and 30 seconds East 95.51 feet, thence South 8 degrees, 46 minutes East, 258.95 feet, thence South 2 degrees, 05 minutes East, 140.70 feet to the point of beginning. Contains 7 acres more or less (one acre of this is in roads).”
The foregoing description is deficient in that Hidden Valley is not in Township 18 North. However, the recorded plat of Hidden Valley correctly shows that Hidden Valley is in Township 19 North. Thus, we see that the mortgage contains two general descriptions, one which erroneously describes the property as being in Township 18 North and the other which correctly describes the property as being “all in Hidden Valley.” Furthermore, the metes and bounds description, without the necessity of extrinsic evidence, furnishes the key to show the error in the stated township description in the deed. The actual metes and bounds description of the property involved is shown on plaintiff’s Exhibit 8 as follows:
Since it is shown that Hidden Valley was a properly recorded subdivision and that the mortgage itself furnished a key not only for correctly describing the property but also showed the error in the reference to “Twp.-18-N.”, it follows that the mortgage description is good as against a claim of a bona fide purchaser without notice, if the description is good as recorded against a bona fide purchaser, we can see no reason why it should not be good as against the federal tax lien pursuant to 26 U.S.C. § 6323.
The appellee, United States of America, relies upon McLain v. Jordan, 174 Ark. 738, 298 S.W. 10 (1927), to support the trial court’s ruling in its favor. There Jordan’s mortgage described the property as being in Section 15 rather than in the correct Section 16. We held a recorded and subsequent mortgage containing a correct description to be superior to Jordan’s. However, unlike The Caraway Bank’s mortgage, the Jordan mortgage did not furnish a key to show both the error and the correct description.
For the foregoing reasons, we hold that the trial court erred in holding that appellee’s tax lien was superior to the mortgage.
Reversed and remanded.
Harris, C.J., dissents. | [
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Lyle Brown, Justice.
Appellant Kenny Garner was charged with two counts of selling marihuana and the counts were consolidated for trial. Undercover agents Jackson and Hill testified appellant, along with co-defendant Diane Garner, sold them each a “lid” of marihuana for $15 each on June 11, 1974. The undisputed evidence showed that Officer Walker met the undercover agents and received the contraband and, along with Officer Silvey, delivered the substance to Mr. Wise of the State Health Department laboratory for analysis. Mr. Wise testified the substance contained “marihuana, C.S.L.” There was no testimony on behalf of either appellant or his co-defendant.
Appellant advances three points for reversal and additional facts will be supplied when those facts are necessary to a determination of the issue in question.
Appellant contends that since Officer Silvey was unable to identify the State’s Exhibits One and Two by his initials, the State failed to establish a proper chain of custody of the evidence. The point has no merit. Even without Officer Silvey’s testimony, there is testimony showing each transfer of the evidence from the time it was purchased from appellant until it was introduced in the evidence. The envelopes were clearly marked with unique numbers which matched the numbers on the receipts from the State laboratory. Very much in point is the case of Fight v. State, 254 Ark. 927, 497 S.W. 2d 262 (1973). There the appellant alleged the proper chain of custody had not been established because one of the officers who had handled the evidence did not testify. We said: “We do not agree. Both Officer Hartman and Detective Reather again took the stand and testified that the Fight envelope bore the markings placed by them, and Mrs. Van Dusen stated that it was sealed when delivered to her; she opened the envelope on the end and it was still sealed at the flap at the time of the trial. The record does not reflect why Sergeant Langston did not testify but we think under the circumstances herein, that the evidence was admissible. According to the testimony of the officers, the envelope, clearly identifiable since they had placed notations upon it, was the same in which the tablet containing LSD had been placed, and Mrs. Van Dusen likewise identified this envelope as being the one from which the tablet was taken. The purpose of the chain of identification is to prevent the introduction of evidence which is not authentic. The fact that the envelope was delivered to Mrs. Van Dusen by the Health Department official in charge of the mail is not really argued, only men tioned, and certainly there is no suggestion that either this official or Sergeant Langston had tampered with the envelope.”
The appellant next contends that because the State failed to show that the substance introduced in evidence as “Marihuana, Cannabus sativa L.” did not fall within the exemption provision of Ark. Stat. Ann. § 82-2601 (n) (Supp. 1973) the State failed to prove the appellant sold a controlled substance. The contention is without merit. Ark. Stat. Ann. § 82-2601 (n) (Supp. 1973) reads:
“ ‘Marihuana’ means all parts of the plant Cannabis sativa L., whether growing or not; the seeds thereof; the resin extracted from any part of the plant; and every compound, manufacture, salt, derivative, mixture, or preparation of the plant, its seeds or resin. It does not include the mature stalks of the plant, fiber produced from the stalks, oil or cake made from the seeds of the plant, any other compound, manufacture, salt, derivative, mixture, or preparation of the mature stalks (except the resin extracted therefrom), fiber, oil, or cake, or the sterilized seed of the plant which is incapable of germination. ”
Appellant’s contention is answered by statute, Ark. Stat. Ann. § 82-2630 (Supp. 1973), It reads:
“(a) It is not necessary for the State to negate any exemption or exception in this Act [§§ 82-2601 — 82-2638] in any complaint, information, indictment or other pleading or in any trial, hearing, or other proceeding under this Act. The burden of proof of any exemption or exception is upon the person claiming it.”
The final point, and one which requires reversal of the case, concerns an extended colloquy between the court and counsel over the testimony of Larry Jackson and Paula Bailey. A thorough understanding of the point requires that we quote at length the described colloquy. A witness for the State, Larry Jackson, was cross-examined without objection as follows:
“Q. I am going to ask you some rather relatively specific questions. Did you, in late July, 1974, at Crawford’s Trailer Park where James Burdette lived, sell two joints of marijuana to Paula Bailey for the sum of $1.00?
A. No, sir.
Q. You deny that?
A. Yes, sir.”
The State called one Paula Bailey in its case-in-chief and counsel for appellant objected on the basis that the name of the witness was not on the information and was not furnished pursuant to a motion to produce names of witnesses which previously had been granted. The appellant further objected as to the relevancy of the expected testimony if the testimony to be elicited was to prove that Larry Jackson had not sold Paula Bailey two joints of marijuana.
The Court allowed the witness to testify and the record reflects:
“Q. Has Larry Jackson ever sold two joints of marijuana to you?
A. No, sir.
Q. All right, nothing further.
BY MR. McDANIEL: Your Honor, again we object. That is totally irrelevant testimony of this witness. We move that it be stricken and the jury (told) to disregard it.
BY MR. PEARSON: If the Court please, upon the cross-examination of Mr. Jackson, by Mr. McDaniel, Larry Jackson was asked on cross-examination if it was not true that he sold two joints of marijuana to one Paula Bailey and this is pertinent to show the good faith of the cross-examination and that there is no basis for any impeachment of this witness.
BY THE COURT: The objection will be overruled.
BY MR. McDANIEL: May I further object on the basis that though we asked a question of Mr. Jackson we were bound by his answer and could not bring in contradictory proof regardless what his answer would have been. We were bound by his answer.
BY THE COURT: The objection will be overruled. You inquire.
CROSS-EXAMINATION BY MR. McDANIEL:
BY MR. McDANIEL: Your Honor, might the record reflect that though we are examining, we have no intention of waiving our objection and ask that it be a continuing for all the testimony of this witness.
BY THE COURT: You want to object to the testimony you elicit from the witness?
BY MR. McDANIEL: No, Your Honor, I want the record to reflect that we object to this witness being allowed to testify in any respect in this trial.
BY THE COURT: I don’t see how you can object to the testimony that you are going to elicit from the witness, yourself.
BY MR. McDANIEL: Your Honor, I am objecting to the relevancy of it. Since this Court has allowed this witness to testify on direct examination, I am asking for the opportunity to cross-examine this witness without having, this Court having considered our original objection made.
BY THE COURT: All right, the objection will be sustained then, the testimony of this witness stricken from the record. The jury told to disregard it. You, may stand aside.
BY MR. McDANIEL: At this time we move for a mistrial.
BY THE COURT: Be denied. I thought you said you wanted the jury admonished.
BY MR. McDANIEL: I do want the jury admonished. I do not think the admonishment is enough and I ask for a mistrial.
BY THE COURT: Well, that is not what you said.
BY MR. McDANIEL: I am asking for it now, if Your Honor please.
BY THE COURT: Well, you just go ahead and examine the witness then. You need to make up your mind what you want.
BY MR. McDANIEL: Tour Honor, I would like to have a mistrial.
BY MR. PEARSON: The evidence does stay in I take it.
BY THE COURT: Tes sir. All of the last portion of the Court’s ruling be stricken from the record. You may examine now, if you have any desire to do so.
BY MR. McDANIEL: Your Honor, I would like for the Court’s ruling to remain in the record.
BY THE COURT: No, they have been stricken from the record because we are proceeding with the testimony of the witness.
BY MR. McDANIEL: Do I understand that the Court is not going to leave his ruling in the record. The record will not reflect the proceedings —
BY THE COURT: No, I am just withdrawing them because of your desire, Mr. McDaniel, to examine the witness, I am going to let you do it.
BY MR. McDANIEL: No, Your Honor, I don’t desire to examine this witness except for the fact that the Court has allowed her to testify on direct examination.
BY THE COURT: I’m not going to argue with you about the ruling. I have made the ruling. Now, you can abide by it or ask any question you want or have a seat. Any way you want to handle that.
BY MR. McDANIEL: Note our exceptions. (Emphasis added).”
In the first place the testimony of Paula Bailey was inadmissible. Whether Jackson sold marihuana to Paula Bailey was a collateral matter and Jackson’s testimony thereon should have ended the matter. Nevertheless, in the absence of the extended argument just reproduced we might hold the admission of the testimony to have been harmless error. However, the recounted colloquy places undue emphasis on the inadmissible testimony. The inconsistent rulings of the court and the chastisement of defense counsel, we fear, overly impressed thejury with Paula’s testimony. At least we cannot say it was harmless error; in such event it becomes our duty to say it was prejudicial.
Reversed and remanded.
Jones, J., dissenting. | [
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John A. Fogleman, Justice.
This appeal involves the custody of Karen and Sarah Lynn Arledge, minor daughters of appellant and appellee, who were divorced by decree of the Chancery Court of Jefferson County entered April 19, 1968. Custody of the daughters and an older brother was awarded appellant and appellee was ordered to pay 1200 per month child support. On August 20, 1968, the chancery court granted the joint petition of the parties to permit appellant to remove the children to Texas. Between that time and March 12, .1974, numerous petitions and motions relating to support payments were filed. On the 31st day of August, 1970, the chancery court abated support payments by appellee for the months of January, February, and March 1970 because of appellee’s being unemployed, required him to pay $100 onto the registry of the court for money improperly withheld by him during June, July and August of 1970, and reduced the amount of the required support payments to $150 per month, payable in semi-monthly installments of $75 each. On March 7, 1974, appellant filed her petition alleging that appellee had removed their minor children from Texas to Arkansas, without her consent, and had failed and neglected to pay child support in violation of the chancery court’s decrees. Citation was issued on this petition requiring appellee to appear on March 11 to show cause why he should not be adjudged in contempt of court. Appellee responded with a general denial filed on March 12 and also filed a motion for a change in the court’s decree as to custody by awarding him custody of the two daughters, alleging that conditions had materially changed since the decree of divorce and other orders of the court and that the change in custody was in the best interest of the two children. The next day appellant filed a response denying that there was any change in conditions warranting a change of custody and alleging that his failure to comply with the custody and support orders of the court was intentional and that he should be denied any relief until he had complied with the court’s orders. Appellee also filed later responses alleging that he had complied with the orders of the court, that he didn’t remove the children without the consent and permission of appellant, denying that he had neglected to make required payments, and alleging that he had reduced payments with the consent of appellant and that she was barred from raising any question about his failure to make support payments.
A hearing on the various pleadings was held on August 27 and the court’s opinion was rendered on August 29 and a decree entered on September 6 for August 29. The chancery court held that the appellee was in arrears on his child sup port payments in the sum of $1,853.33, as of March 1, 1974. It found that appellee had not willfully violated the court’s orders in this respect because the evidence reflected that the children had spent much of the time after September 1, 1970 with appellee, the parties had agreed among themselves that appellee’s obligation could and should be reduced, and that appellee had been unemployed for a substantial period of time after September of 1970. The court also found appellee in contempt of court for removing the children from appellant’s home in Garland, Texas to his own home in Pine Bluff, Arkansas without sanction by the court or by appellant but declined to punish him for contempt, holding that there were extenuating and mitigating circumstances surrounding the removal. An attorney’s fee of $250 was awarded appellant.
Appellant argues that the court erred in changing its custody order, saying that the record was void of any change in circumstances. We certainly cannot say that the court’s change in custody was an abuse of discretion or that its holding in that respect was clearly against the preponderance of the evidence. There was evidence that appellant had lived with her present husband in the home with these children prior to their marriage and that the children were fully aware of the fact that they were not married and were informed of the marriage rather casually after an extended period of cohabitation. According to the children, relationships in the home deteriorated after appellant’s present husband moved into the home.
The son of the parties left and came to Arkansas sometime in 1973, because of his displeasure with the conditions. While some of his objections seem rather trivial and relate to his objection to strict discipline, he said that his mother and stepfather discouraged his participation in music or school activities, took one-third of his earnings for his room and board, objected to his using his mother’s pots and pans to prepare his own food, which they required him to do. He stated that appellant and her husband became very cold toward all three children and seemed not to want to have anything to do with them. He also related that at times appellant told the children that she hated them, called him vulgar names, and sometimes spoke to him disparagingly in front of his sisters. He stated that whenever his mother was displeased with him she would derogatorily compare him with his father. He was of the opinion that his sisters would be better off living with their father and stepmother in that, in contrast to their previous situation, they would have the benefits of affection. He said that he had left his sisters reluctantly.
Karen was 16 years of age on July 21, 1974. She had been living with her father and stepmother in Pine Bluff since March 6, 1974. She said that she had come home on the preceding Monday and had found that her mother was gone, leaving a note saying, “Karen, remember mother loves you no matter what happens.” She testified that her mother was out of town on numerous occasions for approximately a week at a time. She felt that after Mr. Johnson came into the picture there was not much of a home and that it was difficult for the children to get along with her mother and stepfather thereafter. She related that her mother had on occasions said that she would pay their father $100 per month if he would take the children and keep them happy. According to her, there was a complete lack of communication between children and parents but numerous arguments. Karen did not know of her mother telling neighbors to look in on them when she was away nor did she know of any occasion when anyone ever had. She stated that she was allowed $15 a week out of which she had to pay for her own meals, even when the family ate out, and that, after encouraging her to buy expensive clothing, Mr. Johnson took $4.50 per week out of her allowance until the clothing was paid for. She stated that there were marital difficulties between her mother and stepfather on several occasions. She expressed a decided preference for living with her father.
Sarah was 12 years old when she testified. Her testimony largely corroborated that of her brother and sister. She attributed the change in conditions at home to her mother’s association with her present husband. She said that her mother had told her that Johnson had given her the choice of living with him or with her children.
This testimony certainly indicates a decided change of circumstances after , the previous custody orders had been entered. It is quite significant to us that appellant did not testify and has nevér denied any of the statements made by her children under oath. .
Appellant argues vigorously that since appellee was in contempt of court for violation of its previous orders relating to custody and support of the children, the chancery court erred in modifying the custody decree. She relies upon Gilmore v. Gilmore, 239 Ark. 1140, 396 S.W. 2d 936; Casey v. Self, 236 Ark. 496, 367 S.W. 2d 114 and Carnes v. Butt, 215 Ark. 549, 221 S.W. 2d 416. These cases do not relate to changes of custody. Gilmore involved the effort of a father in contempt for willful disobedience of orders requiring payment of child support to have a reduction of the amount of payments required of him when cited for contempt. The others involved attempts of parties who had violated an injunction to test its validity on citation for contempt. Appellee did not question the validity of the previous orders. He did seek modification. However appropriate the holding in Gilmore may be where a modification of a support order is involved, the fundamental approach to custody cases in this state is incompatible with the rule appellant asks us to apply here. In cases where a change in a child custody decree is sought, our primary concern is for the welfare of the child and the desires of the parents are secondary. Townsend v. Lowrey, 238 Ark. 388, 382 S.W. 2d 1. The child’s welfare is the controlling consideration and custody is not awarded as a reward to, or punishment of, either parent. Nutt v. Nutt, 214 Ark. 24, 214 S.W. 2d 366; Miller v. Miller, 208 Ark. 1058, 189 S.W. 2d 371. It is well settled doctrine that, in considering modification of a previous award of custody, the courts should confide custody to the parent most suitable therefor. Kirby v. Kirby, 189 Ark. 937, 75 S.W. 2d 817. Our chancery courts have continuing authority to revise a child custody order upon changed circumstances, which, when considered from the standpoint of the welfare of the child, justify a transfer from one parent to the other. Myers v. Myers, 226 Ark. 632, 294 S.W. 2d 67. In this respect, modification of the decree rests in the discretion of the trial court. Phelps v. Phelps, 209 Ark. 44, 189 S.W. 2d 617.
In other jurisdictions in which proposed modifications of child custody orders are viewed in substantially the same light, the fact that the party seeking to gain or retain custody of a child has violated court orders or has been in contempt of court in that respect is a factor to be taken into consideration in the court’s exercise of discretion to grant or deny a modification of custody orders but is not so conclusive on the matter as to require the court to act contrary to the best welfare of the child. See Shaffer v. Shaffer, 61 Wash. 2d 669, 379 P. 2d 995 (1963); Kalousek v. Kalousek, 77 Idaho 433, 293 P. 2d 953 (1956); MacWhinney v. MacWhinney, 248 Minn. 303, 79 N.W. 2d 683 (1956); S v. G, 298 S.W. 2d 67 (Mo. Ct. App. 1957); Foster v. Foster, 300 S.W. 2d 857 (Mo. Ct. App. 1957); Holland v. Holland, 150 Colo. 442, 373 P. 2d 523 (1962). See also, Kahn v. Kahn, 252 A. 2d 901 (D.C. Ct. App., 1969); Sullins v. Sullins, 280 P. 2d 1009 (Okl. 1955); Jones v. White, 209 Ga. 412, 73 S.E. 2d 187 (1952). To hold otherwise, we would have to permit the desire to punish a parent to override the paramount consideration in all child custody cases, i.e., tbe welfare of the child involved. We have heretofore said that the courts must be keenly alert to the necessity of preventing the shortcomings or merits of the parents from overshadowing tha* which is best for the child. Carr v. Hall, 235 Ark. 1044, 363 S.W. 2d 223. The chancellor committed no error in this respect.
Appellant’s remaining point gives us some concern. The chancellor held that appellee was in arrears in the payment of child support in the sum of $1,853.33, based upon the court’s records of payments made. He made it quite clear that this finding was for the purpose of considering the charge of contempt of court in violation of the court’s decrees. After making this finding, the court held that appellee had not willfully violated the court’s orders for support payments because the children had been with him a great deal of the time during which the arrearage accrued, he had been unemployed for a substantial time during that period, and the parties had agreed between themselves that his obligation could and should be reduced.
We cannot agree with appellant that this action constituted an attempt by the court to modify its decree retroac tively or to remit accumulated arrearages. The chancellor has not indicated that appellee was relieved of his obligation to pay the amount due appellant for child support. He simply held that appellant’s violation of the order was not willful and contemptuous. We do agree with appellant, however, that appellee should be required by the court to pay whatever amount of child support payments was due appellant. We would render a judgment her? if we could be certain what that amount was and of the manner in which payment might best be enforced. The record is incomplete on this point because the court would not permit it to be developed due to an erroneous view of pleading requirements.
Appellant had alleged in her petition that appellee had failed and neglected to pay the sums ordered to be paid, praying that he be cited for contempt of court. After appellee filed his motion to change the custody of the two daughters, appellant filed a response containing allegations that appellee had failed to comply with the court’s orders providing for child support. Her prayer was that his motion be dismissed, that he be found in contempt of court and punished therefor, and “for all proper relief”. Appellee filed a response alleging that the parties had entered into an agreement for a reduction of payments and that appellant was barred from raising any question concerning his alleged failure to make support payments.
After appellant’s trial counsel had thoroughly examined appellee about his arrearages, appellee’s attorney claimed surprise if appellant was seeking judgment for these arrearages. Appellant’s attorney stated she was. The chancellor ruled that she could not pursue this remedy, since there was not a prayer for judgment in any of her pleadings, unless he granted permission for her to amend her pleadings to conform to the proof. Appellee’s attorney later moved that the pleadings be amended to conform to the proof and that his client be permitted to plead the three-year statute of limitations. Appellant’s attorney jqined in the motion. The court, noting that appellant had actually previously moved for such an amendment, denied both motions, over the objec tions of both parties, clearly indicating that this ruling was based upon the earlier one that there was no specific prayer for judgment for arrearages. He stated that the matter of back child support was pertinent, under the pleadings, only to the contempt issue and that no judgment for arrearages would be granted. Appellant then rested her case upon the court records of payment and appellee did not offer any evidence other than his own testimony previously given. The chancellor indicated that he might, if he found appellee in contempt, fix terms for payment of the arrearages.
Even though appellant did not specifically pray for judgment for arrearages, she was, in equity, under her prayer for general relief entitled to any relief in equity that would be justified upon proof of the facts alleged. Whitten Developments, Inc. v. Agee, 256 Ark. 968, 511 S.W. 2d 466; Jackson v. Jackson, 253 Ark. 1033, 490 S.W. 2d 809; Realty Investment Co. v. Higgins, 192 Ark. 423, 91 S.W. 2d 1030. The actual result of our decisions is that, where a plaintiff in equity asks for particular relief, he cannot be granted relief inconsistent with that sought, in the absence of a prayer for alternative relief and pleadings by him so framed as to put the facts reflected by the evidence in issue. Baldwin v. Brown, 166 Ark. 1, 9, 265 S.W. 976, 979, on rehearing; Realty Investment Co. v. Higgins, supra. A judgment for arrearages was not inconsistent with the specific relief sought and, as the court recognized, the amount of the arrearages was clearly in issue.
Still we cannot say, with assurance, that the evidence was fully developed on this issue, so the case is remanded to the trial court for a determination of the amount for which appellant may be entitled to judgment for child support arrearages.
Roy, J., not participating.
See, however, Jackson v. Jackson, 253 Ark. 1033, 490 S.W. 2d 809, as to the statute of limitations. | [
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Carleton Harris, Chief Justice.
Appellant, Richard P. Halvorson, instituted suit in the Sebastian County Chancery Court on August 24, 1973, against Myles and Helen Trout, appellees herein, for the sum of $15,000 which had been paid by appellant to appellees on July 31, 1973, Halvorson alleging that said sum should be returned to him and that appellees had refused to do so. The facts upon which the cause of action was based commenced in April or May of 1973, wherein appellant was attempting to purchase from the Trouts a meat packing business known as Border City Packing Company of Fort Smith. Appellees, who had been longtime owners of the concern, advertised in various newspapers and trade journals their desire to sell the business, and appellant, at that time a resident of Oklahoma City, saw an advertisement and responded, making a trip to Fort Smith to talk with the Trouts and view the operation. After negotiations back and forth, appellees agreed to sell the business for the sum of $236,700, a down payment to be made in the amount of $25,000. On July 31, 1973, Halvorson and his wife came to Fort Smith and met with the Trouts in the office of Robert Westphal, accountant for the Border City Packing Company. Halvorson had been unable to raise the entire $25,000 and informed the Trouts that he could only pay $15,000 at that time. It was agreed that the $15,000 would be accepted and Halvorson would be given thirty days in which to acquire the $10,000 balance. A document was typed setting out the obligations of the parties and interlineations were inserted by hand relative to matters that arose during the discussion. Mr. and Mrs. Halvorson and Mr. and Mrs. Trout all initialed the instrument. The effective date is shown as August 1, 1973. At the same time, Halvorson gave his check in the amount of $15,000 to the Trouts with a notation “Earnest money on Agreement dated July 31, 1973 Contract to follow.” Thereafter, Halvorson and his wife made a trip, and Halvorson apparently returned to Fort Smith on August 8. Events' between that date and August 13 will be hereafter discussed, but on the 13th, Halvorson approached the Trouts, and according to his subsequent testimony, told them that he could not raise the additional $10,000 and accordingly wanted his $15,000 back. Mrs. Trout said that he simply .came into the office and demanded his money back, which was refused. Thereafter, suit was instituted. On trial, the chancellor found that the agreement approved and initialed by the parties on July 31, 1973, constituted a binding and executed contract between the parties; that the check for $15,000 must be treated as designated on the face of the check as being “Earnest money”, consideration for such contract, and that the prayer for the return of the $15,000 should be denied. From the decree so entered, appellant brings this appeal. For reversal, three points are asserted which we proceed to discuss in the order listed.
“I.
THE FINDING OF THE CHANCELLOR THAT THE JULY 31, 1973 AGREEMENT CONSTITUTED A BINDING CONTRACT WAS NOT BASED UPON THE PREPONDERANCE OF THE EVIDENCE AS SUBMITTED AT THE TRIAL.”
Only four persons testified, Mr. and Mrs. Halvorson and Mr. and Mrs. Trout. It is the contention of appellant that the agreement of July 31 did not constitute a contract of sale and the $15,000 should accordingly have been ordered returned. •He said that at the meeting in Westphal’s office, Mrs. Trout brought along the typed page setting out certain items involved but that there were other factors also involved, which were not included on this page. The witness stated that he did not agree to give a $25,000 down payment unless he was •able to secure a loan for the'additional $10,000; that various interlineations were written on the page by Robert Westphal, and that he (Halvorson) asked for assurance that there would be at least $12,600 in accounts receivable and inventory values and that Mrs. Trout responded there would be far more than that; however, this item was not mentioned on the written document. Mr. Halvorson said the inclusion of this item was essential because he would otherwise have no operating capital. His explanation for approving the effective date of the instrument (August 1, 1973) was that it was explained to him by Westphal that it was normal procedure to use the fiscal closing of the corporation as a turnover date. Mr. Halvorson stated that a prepared contract was presented to him on August 9 after he returned from vacation and was given to him by either Mrs. Trout or Westphal for a signature, but that he did not sign because he had been unable to secure the additional $10,000, and also because he found that there was no operating capital within the corporation; that the figures reflecting this fact became available about the middle of the afternoon on August 8. He said that he did not exercise any authority over employees of Border City Packing Company after his return from vacation; that he was introduced to the employees of Border City as the new manager; that he did not consider himself as the owner of the company, though he did admit that he was given keys to the plant. He stated that he made one trip to the post office to get mail, and that he was taken to the stockyard by Mr. Trout and introduced to various commission companies. Halvorson said that he did not see the July 31 trial balance sheet until August 13 and a projection sheet that he had prepared was drawn up on the basis of past information.
Mrs. Halvorson testified that the July 31 paper was just an agreement on some things that had been discussed, and that a contract was to be subsequently prepared; that this last discussion took place on the sidewalk outside of Mr. VVestphal’s office between her husband and the Trouts.
The difficulty with appellant’s arguments is that most of his contentions involve questions of fact. The Trouts insisted that the agreement of July 31 was an agreement for Halvorson to purchase the business. Mrs. Trout said that Halvorson stated that he had come prepared to pay her $15,000 that day; that all parties went over the agreement; that certain changes were made at that time; that it was read and discussed by everybody before it was initialed; that after this was done, Mrs. Halvorson remarked to her that she knew Mrs. Trout was glad “this is over; this has been trying on you I know, but I want you to know one thing —- that the Halvorsons will make a go of this business.” Mrs. Trout testified that she introduced Halvorson to most of the employees herself as their new “boss” and not a “manager”; that she gave Halvorson her set of keys to “everything”, which included the safe. This occurred, according to the witness, on August 9. She said that he worked in the office, figured tickets, waited on customers, was introduced to the customers and suppliers, and took in money. Mrs. Trout denied making any representations to Halvorson relative to accounts receivable or operating capital.
Mr. Trout testified that Halvorson was the “boss” of the business after July 31, and that he (Trout) took Halvorson over to the stockyards, introduced him to commission firms, attended auctions, explained how they'were operated, and told the various commission firms that appellant was the new owner of Border City Packing Company.
As previously stated, it is apparent that the testimony is in conflict and, this being true, it was, of course, up to the chancellor to pass on the facts. Since he had the advantage of seeing and hearing these witnesses, we certainly cannot, from this record, say that Halvorson gave the correct version, and that the Trouts were prevaricating. Aside from that, however, there are certain facts which support the view of appellees. For instance, Mrs. Halvorson testified that as soon as the conversation in Westphal’s office was over, and after the July 31 document was discussed, approved, and initialed, she went to Bridges Realty Company in Fort Smith and made an earnest money payment on a house in the amount of $1,000.
It is difficult to understand the Halvorsons’ taking this action unless they considered that the business had been purchased.
The agreement itself seems to be rather thorough and is but little different from the proposed “contract of sale” (never executed), which was offered into evidence. A copy of the July 31 instrument is being placed in this opinion and a close comparison of the provisions therein and the provisions of the unexecuted contract definitely reflects that principal or major agreements, the “meat in the coconut” so to speak, are practically identical. A check of these provisions reveals that approximately 18 appearing in the July 31 paper appear likewise in the unexecuted “contract,” and only one is not mentioned, and it is not of any great moment. The proposed “contract” appears to only reflect two provisions that are not mentioned in the July 31 instrument and one of these is clear ly an expansion, or explanation, of items in the first mentioned instrument. The other term that is different provides that the Trouts retain an express lien on the property until all notes to the First National Bank are paid in full, while the July 31 provision was to the effect that the Trouts would hold a second mortgage on the property until all notes at the bank had been paid. The price of the property, down payment, amount of monthly payments, length of payment period, provision for paying insurance and taxes, keeping the building in good repair, the employment of the Trouts, taking up the notes at First National Bank and having Mr. Trout’s name removed from the note, and, as stated, a total of approximately 18 different items are set out definitely. Probably the most pertinent item is “effective date — August 1, 1973”. This is the date also mentioned in the unexecuted contract. Appellant’s strongest argument is that there is a notation written in the July 31 instrument, “Will be a contract of sale” and a notation on the check given by Halvorson, “Earnest money on agreement dated July 31, 1973 Contract to follow.” Appellant says that at the most, the July 31 instrument was a contract to enter into a contract. Viewing the two instruments together, we cannot say the chancellor erred in his finding and it would appear that the purpose of having an attorney prepare a formal agreement was to have the agreement placed in “legal form” and that there was no real significance in this being done. This seems logical because both instruments use the date of August 1, 1973 as the “effective date”, i.e., the date of sale or transfer of the property. That it was purely a matter of preparing a formal instrument embracing the terms of the July 31 document, is also given credence by the fact that Halvorson left town immediately after approving that paper, and certainly would have had no opportunity to execute the formal contract of sale by August 1.
Of course, it would have been quite simple for appellant to have placed in the July 31 instrument a proviso that it was null and void if he were unable to obtain the additional $10,-000, ad it would have been just as simple to insert a stipulation or clause that there would be $12,600 in accounts receivable and inventory values.
Another fact should be mentioned. Mr. Westphal was not called to testify by either side, and it would certainly seem that this person, who was present during all the negotiations of July 31, would have been an important witness. Of course, Westphal could have been called by either side, but since appellant had the burden of proof, and it would appear that Westphal was the man who had the contract prepared, it would appear that appellant was the proper person to subpoena this witness. We hold that the instrument of July 31, 1973 was a valid and binding contract within itself.
“II.
UNDER THE THEORY OF UNJUST ENRICHMENT APPELLANT WAS ENTITLED TO RETURN OF HIS $15,000.00”
We cannot agree. Having held that the contract was legal and valid, it follows that the doctrine of unjust enrichment does not apply. In Whitley v. Irwin, 250 Ark. 543, 465 S.W.2d 906, we said:
“The maxim or doctrine appellees rely upon is that no one shall be allowed to unjustly enrich himself at the expense of another. The word ‘unjustly’ as so used means ‘unlawfully.’ *** One is not unjustly enriched by receipt of that to which he is legally entitled. *** No recovery of money received can be based upon unjust enrichment when the recipient can show a legal or equitable ground for keeping it.”
“III.
THE CHANCELLOR IGNORED ACCEPTED AND ESTABLISHED EQUITY PRINCIPLES IN DENYING APPELLANT’S PRAYER FOR RECOVERY OF THE $15,-000.00 HE PAID TO APPELLEES UPON FAILURE OF THEIR NEGOTIATIONS. ”
Appellant argues that whether the July 31 “memorandum is construed as a contract or not,” the situation presented by the evidence established that the $15,000 could only be characterized as a forfeiture; that the granting of relief from forfeitures and penalties is a function of courts of equity and 27 Am.Jur.2d, Equity, § 77, pages 599-600, is cited as follows:
“The principle is established that equity, by reason of its general jurisdiction over forfeitures and penalties, can grant relief from their consequences. Indeed, the granting of such relief has always been a special function of courts of equity. A forfeiture for breach of a covenant or condition in a contract is a recognized manner for the interposition and granting of relief by a court of equity. Equity relieves against forfeiture where no real fault is committed or where the breach is induced or waived by conduct, as well as where by accident or mistake there has been a breach of some collateral covenant, such as to repair or insure, and where a lessor may be placed in the same position as if the breach did not occur by an award of damages or otherwise.”
It is argued that Mr. Halvorson did not have the ability to make the $10,000 payment and thus, should not be penalized. It is contended that there is no proof “except for general statements” that the Trouts suffered any damage as a result of appellant’s failure to meet the terms of what they allege to be a binding contract, and that to allow them to keep the $15,000 defies equitable principles. It is true that no figure from which damages could definitely be ascertained was mentioned; however, damages suffered in this type of case ordinarily of necessity cannot be very definite. Mrs. Trout testified that she had advertised the business for sale for at least two months before Mr. Halvorson answered the advertisement, aad it appears that the parties negotiated back and forth on the price from the last of April until the last of July, or a total of three months. The witness stated that she and her husband advertised extensively in different papers and magazines in California, Kansas, Missouri, Texas and Oklahoma, estimating that these advertisements had cost somewhere between $2,000 and $5,000. She said that another party named Baker had shown an interest in purchasing the property, and that she had been out a great deal of time in the negotiations with Halvorson. Mr. Trout could not pinpoint any losses but he felt that the business could have been affected by the sale, apparently meaning the sale to Halvorson and the return to Trout could have caused a loss of public confidence.
The conditions cited in 27 Am.Jur.2d, supra, do not appear applicable to the circumstances of this case, heretofore set out.
The court specifically mentioned payment of “earnest money” in its decree, and the check containing that notation appears to have been the primary reason for the finding that appellant was not entitled to return of this amount. Having found that the contract was complete on July 31, the finding concerning the earnest money was entirely proper, Bouvier’s Law Dictionary (Third Revision), Volume 1, p. 965 mentions a generally accepted definition of earnest money as follows:
“Specifically, in law, a part of the price of goods or service bargained for, which is paid at the time of the bargain to evidence the fact that the negotiation has ended in an actual contract. Hence it is said to bind the bargain. ”
The language in the Mississippi case of Vanlandingham v. Jenkins, 43 So. 2d 578, is enlightening as to the difference between a penalty and liquidated damages. The Supreme Court of Mississippi stated:
“This brings us to a consideration of whether earnest money is a penalty or liquidated damages. As early as 1847, which is now more than 100 years ago, this Court set this question at rest, holding earnest money to be liquidated damages, and in its opinion the Court there said, in Sims v. Hutchins, 8 Smedes & M. 328, 47 Am. Dec. 90: ‘The only grounds for such a recovery are the unwillingness or inability of the vendor to convey according to contract, or a mutual abandonment of the contract.’ ”
In the Illinois case of Summers v. Hedenberg, 198 Ill. App. 460, the court said:
“The contract shows that the purchaser parted with the earnest money for the benefit of the seller; that is, he paid it as a part of the purchase money. ‘Said purchaser has paid $1,000 as earnest money, to be applied on such purchase when consummated.’ It makes no difference whether the earnest money was delivered to the seller or by agreement is held by a third party. In case of defects in title which are not cured, at purchaser’s option the contract becomes void and said earnest money should be returned. If the purchaser fails to perform, then at seller’s option the earnest money should be retained by the vendor as liquidated damages.”
It appears that earnest money is properly considered as liquidated damages and the trial court thus acted properly.
In concluding, considering the fact that the trial court personally heard these witnesses testify, together with other circumstances mentioned herein, we cannot say that the chancellor’s findings were clearly against the preponderance of the evidence.
Affirmed.
Jones, J. dissents.'
The record does not reflect who typed the document, but the testimony reflected that the written interlineations were written by Westphal.
Halvorson had earlier brought a friend with him to Fort Smith and they had gone over the books and records, after which Halvorson projected a first year budget for the business.
Mrs. Halvorson had accompanied her husband to Fort Smith on other occasions and had looked at houses.
After it developed that Halvorson was not going to operate Border City Packing Company, the realty company returned this money to the Halvorsons.
“That $126,000 of this purchase price is in payment of the real estate to be conveyed by Helen Trout personally to second parties after this contract is paid in full, and pursuant to the Agreements herein stated, and that there is an additional amount of $18,700.00 due on the purchase price together with this $126,000.00, which is to draw 10% interest per annum over a 10 year period from date. .”
Of course, the First National Bank had already made its loan to Border City and had either a mortgage or lien which, until the indebtedness due it was paid, would have been superior to any lien or mortgage of the Trouts.
It is not shown who had this “contract of sale” prepared. The Trouts denied it, and Halvorson denied it, which would only leave Westphal. | [
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George Rose Smith, Justice.
On the afternoon of February 7, 1974, the appellee left his pick-up truck at the appellant’s service department, for repairs. During the night the shop burned, destroying the truck and its contents. Shankle brought this action for damages, alleging both specific acts of negligence and res ipsa loquitur. Moon Distributors v. White, 245 Ark. 627, 434 S.W. 2d 56 (1968). In appealing from a $2,924.50 verdict for the plaintiff, Pine Ford contends that the case should not have been submitted to the jury and that the court erred in admitting certain testimony.
The court correctly submitted the case to the jury, upon both theories. In a similar situation we have held the doctrine of res ipsa loquitur to be applicable. Megee v. Reed, 252 Ark. 1016, 482 S.W. 2d 832 (1972). There was also adequate proof of specific negligence. A former Pine Ford employee testified that oily rags were allowed to accumulate at the shop, that gasoline was kept in an open container, that used oil was poured into a drain with bars across it, and that there were overhead gas heaters with pilot lights. There was also proof that a city ordinance governing the storage of oily waste and rags was violated. Such testimony presented an issue for the jury with regard to specific negligence.
Upon the second point the city fire chief testified as an expert witness that he examined the premises immediately after the fire but could not determine with any certainty the cause of the fire. The trial judge withdrew that testimony from the jury’s consideration, adding: “I’ve taken from the jury’s consideration this man’s opinion that the fire was of undetermined origin or anything else about his opinion as to the cause of the fire.”
The court was mistaken in his assumption that all testimony about the cause of a fire is inadmissible. In Williams v. Lauderdale, 209 Ark. 418, 191 S.W. 2d 455 (1945), we said that the cause of a fire is ordinarily not a matter upon which an expert opinion is admissible, but we stated that the reason for the rule is that expert testimony should be excluded when the issue is one about which ordinary jurors are fitted to draw correct conclusions from the evidence. Thus we also recognized by implication the possibility that in some situations expert opinion about the cause of a fire would be admissible.
Neither aspect of the rule is really present in the case at bar, for the fire chief testified that he could not determine with certainty the cause of the fire. That was not an expression of opinion but a statement of fact, rather like the one considered in Chicago Mill & Lbr. Co. v. Ross, 99 Ark. 597, 139 S.W. 632 (1911). Such a statement of fact is admissible and should not have been excluded in the case at bar, because counsel for the defendant was entitled to use it in arguing his case to the jury.
Reversed.
Fogleman, J., concurs. Roy, J., not participating. | [
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J. Fred Jones, Justice.
This is an appeal by W. E. McPherson, Sr., from a chancery court decree holding him liable to an accounting in the administration of an express trust in favor of his two daughters and one son, Audra McPherson Johnson, Kay McPherson Dolnik and W. E. McPherson, Jr. The daughters will hereafter be referred to by their given names Audra and Kay and the son as Billy.
On December 31, 1951, W. E. McPherson, Sr., and his wife Helen executed a declaration of trust between themselves as grantors and themselves as trustees in which they declared as follows:
“Whereas the Grantors desire to make some present provision for the economic security of their children by the establishment of separate estates for them, but due to the minority of said children it was considered advisable to place such estates in trust in order that it may be properly administered prior to the time said children reach the age of twenty-five years; and
Whereas, in fulfillment of such plan, Grantors by warranty deed dated December 29, 1951, and recorded in the office of the Recorder of Arkansas County, Arkansas, irrevocably conveyed to themselves as Trustees for their children approximately 1028 acres of land in Arkansas County, Arkansas, said land being more fully described below:
NOW, THEREFORE, the Trustees, Helen M. McPherson and W. E. McPherson, hereby declare that they hold in trust the following described property for the uses and purposes and subject to the terms and conditions hereinafter set forth, to-wit:
1. Beneficiaries of the Trust. This trust is for the equal use and benefit of Grantors’ children, AUDREY NELL McPHERSON, WILLIAM E. McPHERSON, JR. AND KAY FRANCES McPHERSON. Said children are the equitable owners of the trust corpus, naked legal title only being vested in the Trustees for the purposes of management.
2. Corpus of the Trust. The initial corpus of the trust is the following described lands located in the County of Arkansas, State of Arkansas, to-wit: [legal description]
The Grantors may from time to time convey to themselves, as Trustees, additional property to be added to the corpus of this trust for the same uses and subject to the same terms and conditions as herein set forth.
3. Distribution of Income. Out of the gross income of the trust, the Trustees shall first pay all necessary and reasonable costs incident to the proper protection, management, conservation and improvement of the trust estate. The remaining net income of the trust shall be paid not less frequently than annually to AUDREY NELL McPHERSON, WILLIAM E. McPHERSON, JR. and KAY FRANCES McPHERSON, share and share alike, if living, or to the children of any deceased child, per stirpes.
4. Distribution of Corpus. This trust shall terminate when the Grantors’ youngest living child reaches the age of twenty-five years. Should Kay Frances McPherson die before reaching the age of twenty-five years and the Grantors’ youngest living child be above the age of twenty-five years on the death of Kay Frances McPherson, the trust shall terminate upon the death of Kay Frances McPherson.
Upon the termination of the trust, the corpus of the trust shall be distributed to AUDREY NELL McPherson, william e. McPherson, jr. and KAY FRANCES McPHERSON in equal shares. Should any child be not then living but be then survived by a child or children, the share of such deceased child shall be distributed to the child or children of such deceased child. Should any child die before the termination of the trust, survived by no children, such child’s share of the corpus shall be distributed to the Grantors’ other children and the children of any other deceased child, per stirpes. Should all of said children die prior to the termination of the trust survived by no children, the trust corpus shall be distributed upon the death of the survivor of said children to the estate of said survivor.
5. Management of Trust Estate. The trustees are charged with the custody, management and protection of all properties and funds of the trust estate. The Trustees are authorized to sell or exchange and convey, at private sale, any real or personal property of the trust; to lease any trust assets, and to receive and receipt for rents, royalties, property or other interests received by the trust estate; to satisfy liens on real or personal property of the trust; to institute legal proceedings for the recovery or protection of assets of the trust; to make compromise settlements of any claims or demands of or against the trust estate; to borrow money and to execute a mortgage on trust assets to secure such a loan; to employ an agent or agents to manage, subject to the Trustee’s supervisory control, any part or all of the assets of the trust estate; and otherwise, to exercise all duties, rights and authority reasonably incident to the ownership of the trust assets and the discharge of their trust responsibilities.
All acts of the Trustees, however, with reference to the management, conservation, improvement or disposition of the trust corpus and income shall be solely in their capacity as fiduciaries of the trust and the holders of naked legal title to the trust assets. The Trustees shall never under any circumstances in their capacities as individuals borrow from the trust estate, purchase any of the trust assets except at the fair market value thereof, pledge any trust assets for their own benefit, use any of the trust assets to discharge any legal or moral obligation of their own, control of use [sic] the trust estate or the income therefrom in any manner for their personal benefit, or otherwise take any action which is not in the best interests of and for the sole benefit of the beneficiaries of the trust estate.
6. Successor and Co-Trustees. WILLIAM E. McPHERSON, JR. shall become a Co-Trustee of the trust when he reaches the age of twenty-one years. In the event of the death, incapacity, or resignation as Trustee of either W. E. McPherson or Helen M. McPherson, HUBERT C. McPHERSON shall serve as a Co-Trustee. Any successor Trustee shall be vested with the same duties and authorities as the original Trustees. No Trustee shall be required to give bond. Neither W. E. McPherson, Helen M. McPherson nor William E. McPherson, Jr. shall be paid any fee for their services as Trustee.”
When the trust indenture and deed were executed, the oldest child Audra was 15 years of age; Billy was 14 years of age and Kay was seven years of age.
After the indenture was executed, Mr. McPherson rented the farm to a tenant under a rental agreement by which the trust shared in some of the expenses and took a share of the harvested crops as rental. In 1959, some seven years after the trust was executed, Mrs. McPherson obtained a divorce from the appellant on the basis of three years separation. In the divorce case, and in connection with the property rights involved* Mrs. McPherson attempted to require the appellant to make an accounting as trustee of the .children’s trust and to make payment of income for past years under the provisions requiring an annual distribution of the income. The divorce case was appealed to this court, McPherson v. Smith, Judge, 231 Ark. 228, 328 S.W. 2d 849, and in that case we held that two separate causes of action were asserted, one against Mr. McPherson individually for divorce, and the other against him as trustee for an accounting in his representative capacity. We granted the requested writ of prohibition prohibiting the chancellor from proceeding in the petition against Mr. McPherson for an accounting in his capacity as trustee.
Under the trust indenture Billy was to become a co-trustee upon attaining the age of 21 years. He was released from military service in May, 1960, and in anticipation of his return from the service and taking over the entire operation and personally farming the trust lands as tenant while acting as trustee, the appellant performed some preparatory work in getting the land ready for planting the 1960 crop. Upon Billy’s return from the service in May, 1960, he was placed in possession of the lands and also the equipment the appellant had acquired for his use and was given complete control of the cash trust funds in the bank. Thereafter Billy acted as the sole active trustee and the appellant did nothing, nor did he attempt to do anything toward controlling the trust assets or any of its activities.
Upon termination of the trust when Kay became 25 years of age in 1969, the three children brought the present action against the appellant seeking an accounting and a judgment against him for the annual income from the trust during the period of his active administration. It was the appellant’s contention that during the negotiations between him and his former wife, pertaining to their property settlement, a family agreement was entered into by all parties concerned to the effect that if he would turn the entire administration of the trust over to Billy, no accounting would be required of him. He contended that all three of the cestuis que trust thus had knowledge of his abandonment of the trust to Billy and were, therefore, estopped by limitations and laches from demanding an accounting upon the termination of the trust. The chancellor held that the plea of laches was valid as to Billy, the successor active trustee, and dismissed the suit as to him, but he permitted the suit to continue on Audra and Kay’s complaint.
On the basis of reports by a certified public accountant, who initially testified for the appellant but did additional accounting work as master in chancery under direction of the chancellor, the chancellor determined that the appellant was indebted to Audra in the principal amount of $7,427.41 which together with interest at six per cent in the amount of $9,743.44, made a total amount of $17,170.85 owing to Audra as of August 1, 1973; that he was indebted to Billy in the principal amount of $8,959.45 which together with interest at six per cent in the amount of $11,164.21 made a total of $20,-123.61 owing to Billy as of August 1, 1973; that he was indebted to Kay in the principal amount of $10,468.60 which together with interest at six per cent in the amount of $12,-544.32 made a total of $23,013.92 owing Kay as of August 1, 1973.
The chancellor entered judgment for Audra against the appellant in the amount of $17,170.85 together with interest at six per cent from August 1, 1973, until paid, but gave the appellant credit on the judgment for the balance amount of $6,000 owed by Audra on a prior loan together with interest at six per cent from September 22, 1967, until the time of satisfaction of the judgment. The chancellor entered judgment against the appellant in favor of Kay in the amount of $23,013.92 together with interest at six per cent from August 1, 1973, until paid. The chancellor affirmed his findings as to the amounts due Billy but decreed that he take nothing against the appellant by judgment or otherwise since such relief was barred by the statute of limitations. The chancellor awarded costs, including the services of J. L. Michelle in the amount of $300, against the appellant and awarded $9,000 attorney’s fee and sheriff and circuit clerk costs in the amount of $37.00 against the appellant.
On appeal to this court the appellant relies on the points designated as follows:
“The denial of the defenses of limitations and laches as against the plaintiffs, Audra McPherson Johnson and Kay Lewis Dolnik on the grounds that they did not have notice that the defendant turned the entire management of the trust property over to the co-trustee and, in effect denied, repudiated and rejected the trust in the capacity of trustee is against the preponderance of the evidence.
The lower court’s disallowance of the credit claimed for (1) irrigation equipment, (2) automobiles purchased for the beneficiaries, (3) money advanced to Audra to attend the University of Arkansas, and (4) of equipment purchased from third parties with trust funds and delivered to the successor-trustee, are all based upon findings which are against the preponderance of the evidence.
The allowance of an attorney’s fee to the plaintiffs is unwarranted because no demand was made prior to the filing of this suit, and it is excessive.”
As to the appellant’s first point, we are unable to say that the chancellor’s decree was against the preponderance of the evidence. The appellant argues that all three appellees had knowledge of the trust and the appellant’s repudiation of it as early as 1960. All parties seem to agree on the law applicable to the defense of laches against trust beneficiaries who have personal knowledge of the trustee’s repudiation of the trust.
Restatement (Second) of Trusts § 219 (1957) is as follows:
“Laches of the Beneficiary
(1) The beneficiary cannot hold the trustee liable for a breach of trust if he fails to sue the trustee for the breach of trust for so long a time and under such circumstances that it would be inequitable to permit him to hold the trustee liable.
(2) The beneficiary is not barred merely by lapse of time from enforcing the trust, but if the trustee repudiates the trust to the knowledge of the beneficiary, the beneficiary may be barred by laches from enforcing the trust.”
Our decisions have followed the Restatement. See Meyers v. Meyers, 210 Ark. 714, 197 S.W. 2d 477 (1946).
In Sprigg v. Wilmans, 204 Ark. 863, 165 S.W. 2d 69 (1942), this court said:
“At page 903, 37 C.J., title Limitations of Actions, a great many cases are cited in support of this statement of the law:
‘(Section 267) 27. Trusts — a. General Rule. In case of a technical, or in other words, direct, express, continuing trust, such as is exclusively within the jurisdiction of a court of equity, the general rule, sometimes declared by statute, is that the statute of limitations does not run between trustee and cestui que trust, so long as the trust subsists, for the possession of the trustee is the possession of the cestui que trust and the trustee holds according to his title; and, moreover, so long as this condition exists, no cause of action has accrued. In order to set the statute in motion in favor of the trustee the trust must terminate, as by its own limitation or by settlement of the parties, or there must be a repudiation of the trust by the trustee and an assertion of an adverse claim by him, and the fact made known to the cestui que trust. This proposition is well established by all the numerous cases in which the question has arisen, and there is no conflict of authority whatever upon the subject. The rule, however, is subject to the qualification that the cestui que trust may be barred of his remedy through laches or such a lapse of time as will give rise to a presumption of discharge or extinguishment of the trust.’ ”
Thus, in the case at bar, it was a question of fact as to whether the beneficiaries had such knowledge of the appellant’s repudiation of the trust that laches would apply. The burden was on the appellant-trustee to prove that the beneficiaries had such notice. In the very early case of Harriet and others v. Swan & Dixon, 18 Ark. 495 (1857), this court said:
“[I]f it had been shown that Mrs. Barden had committed a breach of her trust beyond the mere nonexecution of it, it could not avail the appellants, because mere acquiescence in a breach of trust will not prejudice a person who was ignorant of his rights; and it lies upon the trustee, who rests his defense on the acquiescence of cestuis que trust in the breach of trust, to prove they had knowledge or notice of it. Hill on Trustees, p. 627 and other authorities cited by appellees. ”
The appellant contends that it is unrealistic to believe that appellees did not have notice of the repudiation because they knew of Billy’s taking over the farming operation and of Mrs. McPherson’s property settlement with the appellant, which he contends released him from an accountr g. Billy was co-trustee under the terms of the trust and the testimony of both the appellees contradicts appellant’s contention. Appellant also argues that the appellees stated reasons for not filing suit within nine years after appellant gave up control of the trust is not credible. In essence, appellant questions the credibility of the testimony. In Marine Mart v. Pearce, 252 Ark. 601, 480 S.W. 2d 133 (1972), we said:
“On appeal, this court will reverse a Chancellor’s findings of fact only when such findings are against the preponderance of the evidence, . . . and further, where the issue is predominantly one of credibility between interested parties, we uphold the Chancellor’s judgment.”
As a second basis for holding appellees Audra and Kay guilty of laches, the appellant argues that they were barred because Mrs. McPherson and Billy were co-trustees and were barred by laches. For this proposition appellant cites Restatement (Second) of Trusts § 327 (1957):
“Rights of Beneficiary When Trustee Barred by the Statute of Limitations or Laches.
(1) Except as stated in Subsection (2), if the trustee is barred by the Statute of Limitations or by laches from maintaining an action against a third person with respect to the trust property, the beneficiary is precluded from maintaining an action against the third person. (2) If the third person knowingly participated in a breach of trust, the beneficiary is not precluded from maintaining an action against him therefor, unless
(a) the beneficiary is himself guilty of laches, or
(b) a co-trustee who did not participate in the breach of trust, or a successor trustee knowing of the claim against the third person, fails to bring an action against him un - til he is barred by the Statute of Limitations or by laches.”
The appellant argues that the above quoted subsection (2) (b) applies to the case at bar and cites as additional support Chase v. Cartright, 53 Ark. 358, 14 S.W. 90 (1890); Hart v. Citizens’ Nat’l Bank, 105 Kan. 434, 185 P. 1 (1919). The appellant misapplies this authority. A fair reading of Restatement § 327 shows that it applies to a beneficiary’s action against a third person who benefited from the trust and does not apply to a beneficiary’s action against a wrong doing trustee. This section is part of Chapter 9 of the Restatement (Second) of Trusts entitled “Liabilities of Third Person.” Restatement, § 219, supra, and its commentary, which sets forth the basis for laches in a suit by a beneficiary against a trustee, does not refer to § 327, whereas, comment j of § 327 says:
“If the trustee permits the claim against the third person to be barred, the beneficiary can maintain a suit against the trustee for breach of trust (see § 177), unless he is barred by laches or otherwise from so doing (see § 219).”
Thus it would appear, the rules expressed in § 219 control the application of laches in a suit by a beneficiary against his trustee. The cases cited by the appellant in support of this argument on this point deal with suits by a beneficiary against third persons unconnected with the administration of the trust, and not against trustees or former trustees. In Chase v. Cartright, supra, the trustee held legal title to some land which was part of a testamentary trust. The defendant possessed this land adversely to the trust. The plaintiffs, who had been contingent remaindermen to beneficial interests in the property, brought suit when their interest vested. In holding the plaintiffs barred from bringing suit against the adverse possessor, this court said:
“Seven years adverse possession was sufficient to bar the right of the trustees, they being under no disability; but whenever the right of action in the trustees is barred by limitation, the right of cestuis que trust thus represented is also barred.”
In Hart v. Citizens' Nat'l Bank, supra, a trustee breached his trust by conveying certain stock in the trust corpus to the defendant bank. Shortly thereafter this trustee resigned and a successor was appointed. The successor trustee had knowledge of the stock transfer but never brought suit. The beneficiaries did not bring the action until they attained their majority, some 14 years later. The Supreme Court of Kansas applied the Restatement rule in § 327 and held the suit barred against the bank. The appellant has cited no case, and we have found none, wherein the beneficiaries of a trust were barred by laches from suing a wrongdoing trustee because a co-trustee or successor trustee failed to sue within a reasonable time.
The appellant finally argues that laches applies in this case because the appellees obtained copies of the trust agreement in December, 1965, and knew from it that an annual accounting was required, but failed to bring the action until April, 1969. This argument is without merit since the period of laches ran from the time the appellees received knowledge of the trustee’s repudiation of the trust. Meyers v. Meyers, supra.
As to the appellant’s second point, the rule is well established that a trustee has only such powers as are conferred by the terms of the trust; are necessary or appropriate in carrying out the purposes of the trust, and are not forbidden by its terms. Restatement (Second) of Trusts, § 186 (1957); Linsay v. White, 212 Ark. 541, 206 S.W. 2d 762 (1947).
The declaration in the case at bar recites as one of its purposes:
“ [T]o place such estates in trust in order that it may be properly administered prior to the time said children reach the age of twenty-five years.”
Paragraph 3 of the declaration provides that:
“Out of the gross income of the trust, the Trustees shall first pay all necessary and reasonable costs incident to the proper protection, management, conservation and improvement of the trust estate.”
The chancellor allowed credit on the judgment against the appellant for some items claimed by the appellant and he denied others. We shall only discuss the items the appellant argues were erroneously disallowed. He first argues that the chancellor erred in disallowing a $1,500 claim for the value of an engine and two re-lift pumps which were part of the irrigation system belonging to the trust. We agree with the appellant on this point. The chancellor properly allowed credit for the construction of a reservoir and canal system on the trust lands, and we conclude that the engine and two re-lift pumps were incidental to the proper protection, management, conservation and improvement of the trust estate. This item was disallowed by the chancellor because proper records of cost were not kept and submitted in evidence. We are of the opinion that the depreciation schedule on the items reflected in the appellant’s tax returns, was sufficient justification for the amount of the claim, and that this item should have been allowed.
The appellant next argues that the chancellor erred in not crediting the appellant with two automobiles purchased for Audra and Kay. We are of the opinion that the chancellor was right on these two items. There was evidence from which the chancellor could have concluded that the automobile for Audra was purchased by the appellant as a birthday present from father to daughter, and that the automobile purchased for Kay was a wedding present. The appellant points to Audra’s testimony pertaining to the strained family relations about the time the automobile was purchased for her, but there was also testimony that the appellant had considerable interest and also considerable difficulty in getting Audra to attend college; that the automobile was purchased in connec tion with such persuasion and Audra considered it a birthday present from her father. As to Kay’s automobile, it appears to have been purchased after the appellant ceased his activities as trustee and that it was actually paid for out of his own personal funds for which he claimed reimbursement from the trust.
The appellant next contends that the chancellor erred in not giving the appellant credit for monies advanced to Audra for her college education in the years 1957 and 1958. We agree with the appellant on this item. Even though Audra testified that she had no knowledge of the trust fund until 1960, she admitted that in 1956 she endorsed and cashed a check drawn on the account of “ W. E. and Helen McPherson trust fund by W. E. McPherson” in the amount of $200. She testified, however, that she was only 17 or 18 years of age at the time she cashed this check and did not pay a bit of attention to what account the check was drawn on. She then testified as follows:
“Q. I hand you another document and ask you whether or not you can identify it as being a check you received and cashed?
A. Yes, I did. It’s dated 1-25-57 in the amount of $370.00 made out to Audra Nell McPherson signed by W. E. and Helen McPherson trust fund by W. E. McPherson. I still say that I was not aware of this trust fund business, which was stupidity on my part, I’ll admit.
Q. You did endorse that check?
A. I did endorse that check.
Q, Isn’t it true that you received many such checks while you were in school and while you were working down in Texas?
A. Not while I was working in Texas, I didn’t receive any.
Q. While you were in school?
A. While I was in school, but I remember one time when I was going to school and I don’t know . . .
Q. If it’s not in answer to my question . . .
A. Well, I’m trying to explain about the checks. Would you like for me to finish?
Q. My question is, did you receive other checks drawn on this trust while you were in school.
A. I don’t remember if they were drawn like that. They could have been.
Q. There could have been others?
A. Yes, sir.
Q. You did receive money from your father on this account or other accounts while you were in school?
A. While I was in school, yes.”
The appellant testified as to the difficulty he encountered in attempting to get Audra to accept a college education. The record indicates that Audra worked one year at the University of Arkansas when her father thought she was attending classes and she was not. The appellant testified that before he started sending her checks written on the trust account, he advised her the money would be charged to her account. We are of the opinion that the appellant should have credit for the amounts paid to Audra while she was attending college and while her father thought she was attending college in 1957 and 1958.
The appellant next argues that the chancellor erred in disallowing the appellant’s claim in the amount of $12,084.85 for farm machinery purchased by the appellant in 1959 and delivered to Billy as successor trustee in 1960. We agree with the appellant as to this item. The record indicates that prior to 1960 when Billy took over the administration of the trust and started farming the trust lands, the lands had been farmed, by tenants under a system whereby the tenants furnished their own farming equipment. Billy not only administered the trust as sole trustee after 1960, but he also farmed the land and owned.no farming equipment with which to do so. The farm machinery so purchased by the appellant was transferred to Billy as trustee and belonged to the trust and became a part of the trust estate. The trust indenture provided that “The Grantors may from time to time convey to themselves, as Trustees, additional property to be added to the corpus of this trust for the same uses and subject to the same terms and conditions as herein set forth”; and the indenture further provides for the expenditure of funds in the proper management of the trust estate. Furthermore, it would only be equitable for the trust to pay for the farm machinery owned by it and used by the trustee farming the trust lands. We are of the opinion that the appellant should have been credited with the $12,084.85 for farm machinery he purchased for the trust and delivered to Billy as successor trustee.
The appellant next argues that the allowance of attorney’s fee for the appellees and charged against the appellant was unwarranted because no demand for an accounting had been made prior to the time the suit was filed. The appellant cites no statutory or case law in support of this argument and we are of the opinion that the argument is without merit. It is apparent from the record that a demand for accounting would have been an idle gesture since the appellant’s primary defense was that the appellees were barred by laches following a family settlement agreement.
The appellant next argues that the amount awarded the appellees as attorney’s fee was excessive and we agree with this contention. The attorneys representing the appellees originally did so under a contingent fee arrangement whereby they would receive 25% of amounts recovered in the event of recovery, and would receive nothing if no recovery was obtained. We conclude that the assessment of attorneys’ fee in the amount of $9,000 was excessive in this case, and that the fee awarded against appellant should be reduced to $5,000.
The amount of money advanced to Audra for college expenses during 1957 and 1958 is not clear from the record before us so we conclude that this case should be remanded to the chancery court for entry of a decree not inconsistent with this opinion.
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J. Fred Jones, Justice.
This is a workmen’s compensation case in which the employer, Mohawk Tire & Rubber Company, and its compensation carrier, Travelers Insurance Company, appeal from a circuit court judgment affirming an award of compensation benefits to the appellee-claimant, employee E. T. Brider.
The appellants have designated the points they rely on for reversal as follows:
“There is no substantial evidence in. the record that appellee sustained an accidental injury arising out of and in the course of his employment.
There is no substantial evidence in the record that appellee sustained any temporary or permanent disability.
Appellee’s claim is barred by the statute of limitations.”
We find no merit in the appellants’ first two points.
The appellee Brider’s testimony as to working conditions and the onset of his physical condition is not contradicted to any substantial degree. According to Brider’s testimony, he was employed by Mohawk in 1957, and for about 12 years he experienced no difficulty in unloading trucks and boxcars on a ramp outside the building where tires were manufactured. In April, 1969, he was transferred, at his request, to a better paying job inside the building where he was given the job of “post inflator.” This job consisted of removing hot tires from a conveyor belt as they came from the molding machine. According to Brider, the tires were hot and still smoking as they came from the molds and the air surrounding the area was heavily impregnated with smoke, dust and chemical fumes from the hot tires. Brider said that on the third or fourth day he worked as post inflator he suffered chest congestion, shortness of breath and he started coughing. On the fifth day he worked the cough became so severe it caused blackouts and was attended by shortness of breath and wheezing, so he took off from work and went to the company doctor, Dr. McCarty. He stayed off from work for about a week and when he returned, he again experienced the same difficulty. He went back to Dr. McCar ty and was admitted to the Helena Hospital where he stayed for one week. Dr. McCarty then referred him to Dr. Milnor in Memphis who had him admitted to the Baptist Hospital in Memphis. He said he stayed in the Baptist Hospital for a week under the care of Dr. Milnor, and upon his return to Helena, Dr. McCarty requested Mohawk to remove him from the job as post inflator.
Brider said when he returned to work, he was assigned the duties of “green tire inspector,” but that it was in the same area about seven or eight feet distance from where he worked as post inflator. He said that while working as green tire inspector, he experienced the same trouble of chest congestion, shortness of breath, coughing, wheezing and blackouts. He said he reported his condition this time to supervisor Blackmon and went to see Dr. Daniel Tonymon who gave him a letter addressed to Mohawk advising that he could not work because of his condition. He said he delivered the letter to Mohawk officials and they sent him to another company doctor, Dr. Barnard Copes in West Helena. He said he continued to see Dr. Tonymon for over a year and a half while he was still working off and on at Mohawk. He said Dr. Capes sent him to Dr. Reynolds in Memphis and that he continued trying to work while an outpatient under Dr. Capes at the hospital in Memphis. He said that each time he returned to work, he would experience the same chest congestion, shortness of breath, coughing, wheezing and blackouts; that sometime he would work only one, two or three days before he would have to leave because of the attacks. He said that after working for about two weeks while an outpatient, Dr. Reynolds put him in the Baptist Hospital and performed an operation on July 14, 1971. He said part of his lung was removed in this operation and that following surgery he was off work until March 3,1972. He said he knew the supervisors at Mohawk knew he was going to Dr. Reynolds because he had been “getting benefits” in the amount of $85 per week from Mohawk, and these benefits ran out in January, 1972. He said he was discharged by Dr. Reynolds on March 3, 1972, whereupon he reported back to Mohawk and was assigned a janitorial job in the same work area of his previous difficulties.
Brider said that while engaged in the janitorial work he again experienced the same difficulty as before and after working about seven days, he had to be off again for a couple of weeks. He then returned to work at the janitorial job but only worked an hour when he again experienced the chest congestion, shortness of breath, coughing, wheezing and blackouts, and that on this occasion he reported his condition to his supervisor and had a guard call his wife who took him to a doctor. He said this time he went to a Dr. Miller because he did not feel he could “make it” to Dr. Tonymon. He said Dr. Miller put him in the hospital at Helena and that his employment was terminated on May 4, 1972. He said the company told him it would assume no further responsibility for medical bills and if he was going to another doctor, he would have to pay for it himself. He said Dr. Miller had made arrangements for his admission to the University Medical Center in Little Rock on May 18, but that he was terminated from employment before that date.
On cross-examination Brider said the last day he worked was April 4, 1972, and that he had not worked any at all for the past five months. He said he was still under the care of Dr. Miller and taking medicine prescribed by him. He said while working as post inflator, he devised a cloth mask he attempted to wear over his mouth and nose but when he was transferred to green tire inspection, the company furnished him a mask and he wore it upon the company’s recommendations.
The evidence is rather clear that Brider experienced a violent allergic reaction in his bronchial and respiratory passages while in contact with the smoke and fumes in the tire manufacturing process, but there is a conflict in the medical opinion testimony as to causation and extent of his disability. Brider underwent extensive medical examinations including a lung biopsy and pulmonary function studies. We deem it unnecessary to set out and compare all the medical evidence because we do not weigh the evidence in determining where the preponderance lies in law and compensation cases. In compensation, as in law, cases, we are confined to the record on appeal and if there is any substantial evidence to sustain the findings and award of the Commis sion, or jury, we must affirm. This rule is so well established citation is not necessary.
Dr. Daniel Tonymon said he had treated Brider on 53 occasions. He said in his opinion Brider was totally disabled because of the asthmatic attacks and shortness of breath, and Dr. Tonymon was of the opinion the disability was connected to the initial and subsequent exposure to something in the Mohawk plant. None of the chemicals used in the manufacture of the tires was identified except a few of the basic ones identified by a former fellow-employee of Brider. Dr. Robert Dan Miller, Jr., said he first saw Brider for treatment on March 18, 1972, and saw him 32 times between March 18, 1972, and July 31, 1973. He testified substantially as did Dr. Tonymon.
We are of the opinion there was substantial evidence that Brider was partially disabled because of spasmatic bronchial or asthmatic attacks in the presence of various substances, including chemical substances in the air inside the Mohawk plant, and that his contact and initial attack at the plant set his allergic reaction in motion.
The appellants’ third point on statute of limitations presents some difficulty. Ark. Stat. Ann. § 81-1318 (Supp. 1973) provides as follows:
“Filing of claims. — (a) Time for filing. (1) A claim for compensation for disability on account of an injury (other than an occupational disease and occupational infection) shall be barred unless filed with the Commission within two [2] years from the date of the injury. * *
Ark. Stat. Ann. § 81-1302 (i) (Repl. 1960) defines “compensation” as follows:
“ ‘Compensation’ means the money allowance payable to the employee or to his dependents, and includes the allowances provided for in section 11 [§ 81-1311], and funeral expense.”
Ark. Stat. Ann. § 81-1318 (b) (Supp. 1973) reads as follows:
“(b) Additional compensation. In cases where compensation for disability has been paid on account of injury, a claim for additional compensation shall be barred unless filed with the Commission within one [1] year from the date of the last payment of compensation, or two [2] years from the date of injury, whichever is greater. The time limitations of this subsection shall not apply to claims for replacement of medicine, crutches, artificial limbs and other apparatus permanently or indefinitely required as the result of a compensable injury, where the employer or carrier previously furnished such medical supplies.”
On July 24, 1971, Dr. Leslie B. Reynolds, Jr., reported on Travelers Insurance Company (group insurance) form as follows:
“undiagnosed lung disease manifested by restrictive ventilatory impairment and intermittent bronchospasm. * * * Patient to be hospitalized for rib and lung biopsy..
On August 13, 1971, Dr. J. C. Lougheed reported on a similar form as follows:
“Pulmonary insufficiency and infiltration — cause undetermined. Dense pulmonary adhesions.”
Both of these reports state that Brider was disabled to work and would be so disabled for an undetermined period of time.
On August 20, 1971, Dr. Reynolds reported on Travelers form as follows:
“Pulmonary fibrosis with intermittent bronchospasm. * * * Lung biopsy 7-6-71 showed slight pleural and parenchymal fibrosis and anisotropic crystals presumably from inhaled material. Sample sent to Armed Forces Institute of Pathology, Washington, D.C. for analysis. Patient showing only minor improvement with corticort therapy and must still be considered disabled.” (Our emphasis).
On February 7, 1972, Dr. Reynolds submitted a letter-report reading in part as follows:
“The patient still has a restrictive ventilatory defect, which would limit his activity. This is probably permanent. Until the nature of the inhaled material is determined, it cannot be positively established whether this is responsible for his disability. We are making every éffort to obtain these data. I feel some sort of rehabilitation is in order, however, and believe Mr. Brider should attempt to return to light work on a gradual basis. Should he have attacks of bronchospasm as has been demonstrated before, certainly he cannot work. However, based on the data we have, I feel Mr. Brider can resume limited activity on a gradual basis. He should be watched by your plant physician, with whom I would be glad to discuss his care in greater detail.
I am submitting our statement with this letter.”
On February 28, 1972, Dr. Reynolds wrote a letter to Mohawk as follows:
Mr. Brider called me today and stated that, in the absence of a specific statement from us, he is unable to obtain employment of any type. I have gone over our records and have discussed this matter in some detail with Dr. Lougheed, the surgeon who did the lung biopsy on Mr. Brider, with reference to his probable capacity to work and, while we have not defined Mr. Brider’s ability to work, we can only restate that he has distinct lung pathology. Pulmonary functions show he has a mild, restrictive ventilatory defect. Periodically, he has attacks of bronchospasm characterized by a severe obstructive ventilatory defect and a decreased amount of oxygen in his blood. We have not established the cause of these attacks of bronchospasm but we suspect they may be related to inhaled material seen as microscopic refractile bodies in sections of his lung.
Apparently, the distinct statement relative to the weight Mr. Brider can carry is required by both your institution and the union. After extensive consultation, Dr. Lougheed and I agree that the following statement can be made: Attempts should be made to give Mr. Brider employment which would involve light work. We assess that he may carry 20 to 25 pounds without too much difficulty; however, he should not attempt to carry more than 75 pounds Between these limits, working conditions such as the presence of dust, or other materials which may cause his attacks oj bronchospasm would change the picture. It is expected that with a gradual increase in work load, Mr. Brider should gradually increase his work capacity.” (Our emphasis).
Brider first inhaled the fumes and experienced his first difficulty during the week between April 21 and April 28, 1969. He was sent to the doctor on April 22, 1969. The last injurious exposure to the chemical fumes at Mohawk occurred on March 10, 1972, and Brider filed his claim with the Commission on April 12, 1972. It was Brider’s first contention that his bronchial condition was an occupational disease or infection and the statute of limitations did not commence running on his claim until March 10, 1972, the date of his last exposure. The occupational diseases are set out in Ark. Stat. Ann. § 81-1314 (Supp. 1973) but asthmatic conditions or pulmonary allergic reactions to chemicals, fumes or substances (not resulting in dermatitis) are not among the diseases so listed, and this court is without authority to add to the list. Barentine v. Gleghorn Oil Co., 254 Ark. 182, 492 S.W. 2d 242.
Brider’s second contention was that he had been paid compensation in the amount of $85 per week and also medical benefits from January 18, 1970, to January 18, 1972, and that he filed his claim within one year of the last payment as permitted under § 81-1318 (b), supra. Mohawk contended that the $85 per week paid to Brider was under an entirely separate nonoccupational insurance policy and did not constitute the payment of workmen’s compensation in any sense of the word.
In awarding compensation benefits the Commission found as follows:
“The claimant suffered an injury, notified his supervisor, and the respondents provided medical care and paid him $6,784.66 in weekly compensation benefits under a company health and accident insurance policy.
The claimant’s claim was filed within a year of receiving medical benefits (compensation) and therefore, his claim is not barred by the Statute of Limitations (81-1318 [b]), Reynolds Metals Company v. Brumley, 226 Ark. 388.
It is further the opinion of the Commission that the actions of the respondents have estopped them from pleading the Statute of Limitations.”
We are of the opinion the statute was tolled in favor of Brider in this particular case. Mohawk had procured workmen’s compensation insurance coverage from the coappellant, Travelers Insurance Company and, in carrying out its employment contract with Brider and other employees through their labor union, Mohawk also procured from Travelers a group policy providing accident and sickness benefits for employees as follows:
“Section C — Accident and Sickness Benefits Effective November 1, 1970, and for the duration of this Agreement thereafter, the Employer will provide the following plan of accident and sickness benefits for all Employees.
1. Accident and Sickness Benefits for Employees a. General — Benefits will be paid because of a disabling accident or sickness while under the care of a doctor licensed to practice medicine.
Benefits will be payable from the first day of disability due to accident or occupational illness, the eighth day of disability due to non-occupational sickness or the first day of hospital confinement if occurring prior to the eighth day. Benefits will be paid for the duration of the disabili ty not to exceed 52 weeks for each period of disability. * * *
b. Benefits — The amount of weekly benefit will be $85.00. The amount of weekly accident and sickness benefits otherwise payable will be reduced for each week in excess of 26 weeks of benefits during any one continuous period of disability. * * *
2. Deduction for Workmen’s Compensation Benefits In the event that an Employee received weekly compensation under a Workmen’s Compensation Act for any period with respect to which he is also entitled to weekly benefits under Paragraph 1 of this Section C, the amount of such weekly compensation payable under such Act shall be deducted from the amount of the weekly benefit otherwise payable to such Employee under said Paragraph 1.” (Our emphasis).
As already pointed out, the appellant Travelers Insurance Company had both compensation and group coverage on Mohawk employees. The group policy was payable from the first day of disability due to accident or occupational illness and provided for payments in the amount of $85 per week. The weekly payments were larger but of shorter duration than compensation payments under the workmen’s compensation coverage.
Brider started drawing disability payments under the group policy October 27, 1970, and was paid intermittently through January 18, 1972. These payments were made on the basis of the company physician’s diagnosis of “bronchial trouble.” The payments were apparently made following execution of “claim statement” and “release of medical information” forms by the claimant-employee and the attending physician. Only one set of these completed forms appears in the record. There is no evidence as to who actually filled out the forms but on the claim statement form dated October 31, 1970, and signed by attending physician C. P. McCarty, the cause of disability was designated “bronchial trouble,” and the question as to whether the disability was due to accident, was answered “no.” This form was signed by E. T. Brider but there is a handwritten “X” preceding his signature in-ddaiing that someone other than Brider filled out the form and designated the place where Brider was supposed to sign. This form is in the record as “respondent’s exhibit No. 3” and attached thereto is “release of medical information” form dated April 3, 1970, signed by Brider. Part “B”of this form is designated “attending physician’s statement.” Dr. Daniel Tonymon signed this form under date of April 6, 1970, and under “Diagnosis and Concurrent Conditions” he stated:
“Chronic allergic bronchitis complicated by bronchial vascular congestion and spasm.” (Our emphasis).
The Commission found that all medical treatment to date of the hearing had been paid by Travelers, and that the claim for medical treatment had not been controverted in this case. Under our statute Ark. Stat. Ann. § 81-1302 (i) (Repl. 1960), supra, compensation means the money allowance payable to the employee or his dependents and includes medical payments. We have held that the furnishing of medical services constitutes payment of compensation and is a waiver or suspends the running of the statute of limitations. Reynolds Metal Co. v. Brumley, 226 Ark. 388, 290 SW. 2d 211. In such cases the statute of limitations runs from the date of the last treatment. McFall v. U.S. Tobacco Co., 246 Ark. 43, 436 S.W. 2d 838; Heflin v. Pepsi Cola, 244 Ark. 195, 424 S.W. 2d 365.
As already stated, § 81-1302, supra, defines “compensation” as meaning “the money allowance payable to the employee or to his dependents ...” and we have held that compensation refers to money benefits paid to the injured employee for disability. Brooks v. Ark. Best Freight, 247 Ark. 61, 444 S.W. 2d 246. In the case at bar, as already stated, the appellant insurance carrier had both the compensation and group insurance coverage for Mohawk. The group coverage benefits were also payable for disability due to accident or occupational illness and were in excess of the amount payable under the workmen’s compensation coverage required by law. In Larson, Workmen’s Compensation Law, § 78.43 (a) is found the following:
“When payment of either income or medical benefits has been made by a private employer-employee benefit association or insurance plan, this has usually been held to toll the statute.”
We deem it unnecessary to discuss this case from the viewpoint of whether the statute runs from date of accident or from date of injury (as amemded in 1948), or whether our statute is purely a statute of limitations or repose and goes to the remedy rather than the right; for, we conclude that the statute of limitations in this case was tolled by the payment of compensation in the form of medical benefits, if not included in the $85 weekly payments credited by Travelers to its group coverage. We further conclude that the Commission did not err in holding that the respondent insurance company was es-topped from pleading the statute.
The judgment is affirmed.
Fogleman, J., dissents.
Ark. Stat. Ann. § 81-1311 (Repl. 1960) provides for medical payments. | [
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J. Fred Jones, Justice.
This is an appeal by Auburn P. Smith from an adverse decree of the Ouachita County Chancery Court in a property line dispute between Smith and the appellee Tommy Goodson.
In 1923 the appellant Smith’s father purchased from a Mr. Anderson a tract of land in Ouachita County described as the NE!4 of the NW14, Section 26, Township 15 South, Range 17 West, containing 40 acres more or less, together with a small tract described by metes and bounds in Section 23. The appellant Smith acquired title to the property under the will of his father when his mother’s life estate was terminated by her death in 1970.
In May, 1950, the appellee Tommy Goodson acquired title to the SE Va of the NW Va and the NE Va of the SW Va of Section 26, Township 15 South, Range 17 West, containing 80 acres more or less by warranty deed from a Mr. and Mrs. Wright. The appellee’s land lies immediately south of the appellant’s land, with the north boundary line of the appellee’s north 40 acres, more or less, forming the south boundary line of appellant Smith’s land and the common division line between the two tracts.
In the summer of 1972 the appellee sold timber on his land and a dispute arose between the parties as to the exact location of the boundary line separating their respective tracts. The appellant Smith filed suit against the appellee Goodson alleging that Goodson had destroyed a fence marking the division line separating their property; that he had erected a new fence 80 feet north of the original fence and true division line, and had cut timber from the 80 foot strip which belonged to Smith. Mr. Smith, in effect, prayed confirmation of his title to the 80 foot strip; for an injunction against the appellee Goodson from entering thereon and for damages in the cutting and removal of timber therefrom. Mr. Smith alleged that he and his predecessors in title had exercised uninterrupted possession of the strip of land involved for many years, and that he and the defendant and their respective predecessors in title had at all times prior to 1972 acquiesced in the fence which appellee removed as marking the true and proper division line.
Mr. Goodson filed answer denying the allegations of Mr. Smith and claimed title to the land involved under his deed and also alleged continuous, open and uninterrupted possession thereof.
The chancellor made findings in a written opinion reciting the respective ownership of the tracts as above described and found the testimony offered by the parties to be in irreconcilable conflict. The chancellor then found as follows:
“The government plat which is on file in the County Clerk’s Office was introduced in evidence discloses that each of the two tracts in question are regular in size and shape and each contains forty acres. Plaintiff’s Deed conveyed to him forty acres. The quarter section line between the two forty acre tracts is a straight line East and West across the entire section.
In 1965 Plaintiff secured the services of F. M. Methvin, the County Surveyor of Union County, Arkansas, and who is a reputable Engineer and Surveyor, who surveyed Plaintiff’s tract and a copy of the plat made by him from the survey was introduced in evidence. It showed the line between the parties to be at the place shown on the official plat and stated that Iron Pins were in or placed at each corner of Plaintiff’s tract.
On March 23, 1974, Plaintiff secured the services of Mr. Ed C. Turner, a reputable and qualified surveyor, who surveyed the line between the parties and a copy of his plat of the survey was also filed in evidence and it too reflects the line between the parties to be the same as the Government Plat.
There can be no question that the official Plat and the surveys made by two able and competent surveyors are identical, (except Mr. Turner also shows on his plat a line as claimed by Plaintiff) and that the official survey is the true line between the parties. This brings us to the claim of Plaintiff of title by adverse possession and the Court finds that the evidence falls far short of establishing this contention.”
The chancellor then entered a decree reciting in part as follows:
“That Plaintiff is the owner in fee simple absolute of the Northeast Quarter of Northwest Quarter (NE !4 NW Va) of Section 26, Township 15 South, Range 17 West, Ouachita County, Arkansas; that Defendant is the owner in fee simple absolute of the Southeast Quarter of Northwest Quarter (SE Va NW Va ) of Section 26, Township 15 South, Range 17 West, Ouachita County, Arkansas; that the Government plat which is on file in the County Clerk’s office discloses that each of the two tracts in question are regular in shape and each contains 40 acres; that Plaintiff secured the services of F. M. Methvin in 1965, who surveyed Plaintiff’s tract and that the plat made from the survey, which was introduced in evidence, showed the line between the parties to be at the place shown on the official plat, and stated that iron pins were in or placed at each corner of Plaintiff’s tract; that Plaintiff secured the services of Ed C. Turner, who surveyed the line between the parties, and a copy of his plat of the survey was also filed in evidence, and it, too, reflects the line between the parties to be the same as the Government plat; that there can be no question but that the official plat and the surveys made by two able and competent surveyors are identical (except Mr. Turner also shows on his plat a line as claimed by Plaintiff), and that the official survey is the true line between the parties, that the evidence falls far short of establishing the claim of Plaintiff of title by adverse possession; that the Complaint filed herein by Plaintiff should be dismissed with prejudice; that Defendant should be awarded his costs herein, and that Plaintiff should have thirty (30) days from the filing of this Decree with the Circuit Clerk of Ouachita County in which to file an appeal to the Supreme Court of Arkansas.
IT IS, THEREFORE, CONSIDERED, ORDERED AND DECREED that the Complaint filed herein by the Plaintiff should be, and hereby is, dismissed with prejudice; that the Defendant be, and hereby is, awarded his costs herein, and that Plaintiff be, and hereby is, granted thirty (30) days from the filing of this Decree with the Circuit Clerk of Ouachita County in which to file an appeal to the Supreme Court of Arkansas.”
The appellant relies on the following points for reversal:
“There is no substantial evidence to support the court’s finding that the government plat discloses that each of the two tracts is regular in shape and contains 40 acres and that the government survey and the surveys of F. M. Methvin and Ed C. Turner all disclose that the official survey is the true line between the parties.
The court erred in failing to find that the ‘Old Goodson’ fence established the boundary line between the two tracts, as set forth on Mr. Ed C. Turner’s survey, by virtue of acquiescence.
In the event there was insufficient evidence to establish the boundary line at the ‘Old Goodson’ fence by virtue of acquiescence, the court erred in failing to divide the overage equally between the two properties.”
Our difficulty in this case on trial de novo does not arise so much from the irreconcilable conflict in the testimony as it does from the irreconcilable conflict in the evidence as a whole. Mr. Methvin, who made the survey for Mr. Smith in 1965, did not testify, but the plat of his survey was submitted in evidence as defendant’s exhibit No. 2. This plat shows the length of the south boundary line of the Smith tract to be 1 ,- 329.4 feet, and the length of the east and west boundary lines to be 1,320 feet each. The length of the north boundary line is not indicated on the plat. According to the evidence, this survey was made in connection with a question pertaining to the location of the north boundary line of the Smith tract in connection with property lying in Section 23, which was unrelated to the litigation involved here.
The original government survey plat superimposed on plaintiff’s exhibit No. 1 contains no designation at all as to the length or width of Section 26, but does show the east side of the entire tier of sections running east and west across the township as being 5,280 feet. Whereas the west boundary line of the south one-half of Section 30 on the west end of the tier of six sections is shown to be 2,640 feet, and the west boundary line of the north one-half of Section 30 is shown to be 2,- 767.38 feet, making a total c.8 5,407.38 feet for the west boundary line of Section 30.
Thus, it is obvious from the government survey plat that the west boundary line of the north one-half of Section 26 would be at least some distance longer than the east boundary line of the north one-half of Section 26, and it would only follow that the west boundary line of the appellant’s property would be some distance longer than the east boundary line, unless the discrepancy should be adjusted by some engineering or surveying process, or from monuments not designated on the government survey plat.
The plaintiff’s exhibit No. 2 appears to be a larger photograph of part of the government survey plat showing the entire township from Section 1 through Section 36 north and south, with the exception of the two westerly tiers of sections on the west side of the township. This plat shows Section 26 and all other sections designated on the plat as containing 640 acres. The north and south boundary lines of these sections all differ in length. The south boundary line of Section 26 is shown as 78.18 chains, which would be 5,159.88 feet, and the north boundary line of this section as 78.14 chains, which would be 5,157.24 feet.
Mr. Ed C. Turner was employed by the appellant Smith to make a survey of the property here involved and he prepared a plat of his survey together with an enlarged copy of the original government survey, above referred to, under date of March 23, 1974. Mr. Turner’s plat was offered in evidence as plaintiff’s exhibit No. 1. His plat included a reproduction of the original government survey, or plaintiff’s exhibit No. 1 above referred to. Mr. Turner’s plat as to the specific property here involved, however, shows the west line of the Smith tract or the NE XA of the NW XA of Section 26 as being 1,320 feet. The west line of the appellee’s tract,, the SE!4 of the NW!4 of Section 26, as being 1,482.6 feet, and the west line of the appellee’s south 40, the NE XA of the SW XA of Section 26, as being 1,333 feet. Mr. Turner’s plat does not designate the length of any of the other boundary lines of the property here involved, but does indicate the area in dispute as included in the SE XA of the NW XA of Section 26 and as be ing 72.5 feet in width on the east end between the old fence referred to in the testimony and the boundary line between the Smith and Goodsbn properties as indicated on the plat of the Methvin survey and as indicated by the straight lines on the government survey plat. Mr. Turner’s plat shows the center of the disputed strip across the north end of the SE Va of the NW'4 to be 53.5 feet in width and 61 feet in width on the west end.
We touch lightly on the conflicting lay testimony pertaining to the fence here involved as related to the survey and government plat lines. Mr. Smith admitted that he had his land surveyed by Methvin in 1965 in connection with another transaction not involved in this case, and that Methvin did place corner markers as indicated in Methvin’s plat. He said, however, that he never did accept Methvin’s survey as establishing his true south boundary line. He said he had always considered the old fence, which was some 61 feet south of the Methvin survey line, as the true boundary line between his and the Goodson property, and that Goodson had also accepted and acquiesced in the fence as being on the true boundary line until he started cutting timber from the area in 1972.
This testimony was denied by Goodson. Goodson and his witnesses testified that the true boundary line and corners, as established by Methvin, were the true boundary line and corners; that they had always been so considered by Goodson and his predecessors in title; that Goodson purchased the wire and permitted the fence to be erected (two strands of barbed wire) through ihe woods across the north end of his property for his own use and to accommodate his friends as a pasture for their horses while deer hunting on his property. Mr. Goodson said he purchased the wire and permitted some of his friends to erect a fence and that he simply required them to erect it well within his north boundary line qnd avoid getting on anyone else’s property.
Mr. Smith said he assumed that Mr. Goodson- had erected the old fence and that he or his brother pointed out to Goodson where the property line was at the time the fence was erected.
We now consider the testimony as it relates to the plats in evidence. Mr. Ed C. Turner, called as a witness by the appellant Smith, testified that at the request of Mr. Smith he made a survey of the property here involved on March 25, 1974. He testified that he started his survey at an established point on the south line of Section 35 and ran north to Section 26. He said he found Section 35 to be 5,382.8 feet in length, or to contain an excess in feet of 102 feet. He said he found the SW corner of the SE !4 of the SW !4 of Section 26 located in a road at the corner of the section. The pertinent portions of Mr. Turner’s testimony as copied from the record are as follows:
“Q. To summarize it, you surveyed Section 35 and you established the corner of Section 26 and found a corner located in a road?
A. That is true.
Q. Did you make reference to the original government survey?
A. Yes sir, I did.
Q. For what purpose, Mr. Turner?
A. Each time I conduct a survey, platted outside of the city limits, each surveyor refers to the original government survey according to the original layout. This plat is on file in the County Clerk’s Office to determine whether a Section is exactly a Section, or larger or smaller. It is indicated on the plat as to the original survey of this County, or State of Arkansas, as to how they are located or platted. The original is located in the Clerk’s Office in each County.
Q. Did you bring that book with you?
A. Yes.
Q. Would you turn to the page with regard to Section 26?
A. Yes sir. That will be Section 26, Township 15 South, Range 17 West, page 14.
Q. Did you put on your survey part of the original government survey?
A. Yes I did, except I converted the chains to feet. The original government survey was in chains.
Q. The government survey was in chains but you converted it on your survey in feet, is that correct?
A. Yes sir.
Q. What did the original government survey reflect?
A. It shows that it is an even measured Section on the east side but when they came west, it was either over or under. The north half had 1.93 chains over a half mile.
Q. How long is a true half mile in terms of feet?
A. 2640 feet.
Q. What does the original government survey show as to overage, translated from chains to feet?
A. Your south half is an even 2640 feet, according to the government survey.
Q. You are saying the south half is a true half mile then?
A. It is supposed to be.
Q. What does it reflect on the north half?
A. The north half is supposed to be 2767.38 feet, or a plus of 127.38 feet, which is longer than the true half mile
Q. So the original government survey reflects that the north half of Section 26 is 2767.38 feet, which is longer?
A. Yes. Before I conduct a survey foi anyone, I go to the original government survey to determine whether it is large or small, and if it is short I have to convert proportionately each 40 acre tract. If it is standard, then I refer to this to determine my survey.
Q. If this is true and the original government survey shows the north half of Section 26 has an overage, what does that cause you to do when you prepare your own survey?
A. If all the overage is determined to be in the north half of that Section, then it is divided proportionately.
Q. You said the original government survey shows an overage of 127.38 feet. What does your survey show as to any overage?
A. My own survey shows we had a 135.22 foot overage in the north half only.
Q. What rules of surveying are applied when there exists an overage in a half?
A. It is divided proportionately.
* * *
A. If it is specified in one 40 acre tract, it is so specified. If it is specified in the whole Section, it is so specified. It is a survey rule I go by from the original government survey.
Q. In this case, was the overage attributed to the north half only?
A. There was overage in the south half also, by occupation.
Q. Was that shown in the government survey?
A. No sir. It was indicated in the north half only by the original government survey.
Q. So if there is an overage in Section 26, it would apply to the north half?
A. That is true.
Q. Your survey reflects a broken line which is designated an old fence. Did you survey the old fence, Mr. Turner?
A. Yes.
Q. Who was present to assist you in your survey?
A. You were there and Mr. Auburn Smith and two of his brothers. Approximately five or six people were with me.
Q. How did you locate the old fence?
A. It had been there a long time and I found wire embedded in the trees. I found at least one tree every two hundred feet and I measured every two hundred feet across to determine this fence line.
Q,. You established the old fence by finding barbed wire on old trees from east to west, is that correct?
A. Yes sir.
Q. At the extreme west side of the property you located the fence 61 feet south of the painted red and yellow line, is that true?
A. That is true.
Q. And in the middle you located it 53.5 feet?
A. Yes sir.
Q. And at the extreme east side of the property, you found it to be 72.5 feet of the painted red and yellow line?
A. Yes sir.
Q. Do you have any rules which you apply to a fence which is not straight across property at the parallel line? It does vary here?
A. I don’t have any rule, but I have to run a straight line and whatever the difference is I have to so note.
Q. How do you reconcile the difference?
A. I would determine the average width of the entire length of the fence and divide it and come up with a common denominator.”
On cross-examination the pertinent portion of Mr. Turner’s testimony appears as follows:
“Q. When was the original government survey made?
A. I don’t believe it has a date on it. Somewhere in the 1800’s I would say.
Q. And you are testifying from that survey?
A. Yes.
Q. Does it show corners on there?
A. Yes.
Q. Does it show fences?
A. No.
Q. Does it show roads?
A. Yes.
Q. If there were no conflict between the parties here, we could get this government survey and take you out there and then you could lay off the various lines and you could testify what you just testified to, isn’t that right?
A. Yes sir.
* * *
Q. You have apportioned the overage and underage to your survey, is that correct?
A. Yes.
Q. But not with any reference to the occupation line?
A. Yes, existing corners.
Q, The existing corner in the NE Va of the SW Va of Section 26?
A. Yes.
Q. What marks that corner, Mr. Turner?
A. Iron pin in the ground and a witness tree.
Q. Do you know how long they have been there?
A. No. I can usually tell from embedded wire in trees about how long it has been there.
Q. On the other end there is a pine tree there also, 61 feet north of the existing fence, is there not?
A. Yes.
Q. Did you follow this line across the north half?
A. Yes. It was well balzed and a painted red and yellow line there.
Q. There was a blazed line there?
A. Yes.
Q. Are you talking about a line established on the ground and the fence was measured from that line?
A. Yes.
Q. You have taken the old government survey and come up with your own plan for adjusted acreage because you say there is an overage?
A. It is not my plan, Mr. Barnes. It is the method of surveying taught by all schools in the country.
Q. Does that have any bearing on occupation lines? The occupation line is what throws the whole thing out of kilter, isn’t it?
A. Yes sir.
Q. That is not the case here, is it?
A. I haven’t tried to change anything, Mr. Barnes.”
On redirect examination Mr. Turner said he did not know who placed the iron pin at the corners. Whereupon the appellant Smith was called to the witness stand and testified that Mr. F. M. Methvin placed the iron pins at each corner of his tract when his survey was made in 1965.
On cross-examination Mr. Smith said that Mr. Methvin placed the iron pins 61 feet north of where the old fence was. Mr. Turner was then recalled and testified as follows:
“Q. I hand you survey plat prepared by F. M. Methvin, which is dated 1965. Would you comment on the survey, how it was prepared and how he located the iron pin between the Smith property and the Goodson property?
A. He surveyed a standard 40 acre tract of land which stated this was a large Section. He has staked out practically a standard 40 acre tract without any regard to the original government survey.
Q. This was a survey of the Smith tract, is that correct?
A. That is true.
Q. It had no reference to the Goodson tract?
A. No, sir.”
On cross-examination Mr. Turner testified as follows:
“Q. All that shows is that Mr. Goodson [sic] has what he claims, isn’t that true? It shows he has 1320 feet north and south, east and west from an iron pin Mr. Methvin put there, isn’t that right?
A. Yes.
Q. That is the northwest corner of the Goodson property?
A. I would say that is not the way the survey should have been made. That is why I referred to the plat book.
q * * * I wan{ to know if that is the Northwest Corner of the Goodson property?
A. Yes.”
Mr. Turner said the government survey showed an overage of 127.38 feet in the north half of Section 26, and that his own survey showed an overage of 135.22 feet. He said he apportioned the difference in his survey with existing corners marked by iron pins and a witness tree. He testified as to the distance from the old fence erected by Goodson to the painted and blazed line apparently indicated on the government survey plat and/or established by Methvin. He indicated that Methvin used the wrong procedure in making his survey and made it without reference to the government survey, but Mr. Turner does not say what dimensions his own survey gave to the Smith tract or the Goodson tract in the north half of Section 26.
Apparently Smith and Goodson are both thoroughly familiar with the location of the old fence-line and the so-called Methvin line. Their entire differences resulting in this litigation are over the area between the old fence and the Methvin survey line. While Mr. Turner testified as to the distances at both ends and in the middle between the old fence and the Methvin line, he never did say, and he was never asked, where he found or located the true boundary line in relation to the old fence and the Methvin survey line.
The chancellor found in effect that the division line as found or established by the Turner and Methvin surveys coincided with each other and were also identical with the quarter section line as indicated on the government survey plat. Turner’s survey plat is somewhat misleading when considered without his testimony. His survey plat shows the west side of Goodson’s north 40, more or less, in the north half of Section 26 to be 1,482.6 feet, and the west line of Smith’s tract in the north half of Section 26 to be 1,320 feet. He shows no offsets in the section or quartersection lines, but shows the west boundary line of the north half of Section 26 to be 2,-802.6 feet, which is the same as shown for the quartersection line marking the west boundary of the Smith and Goodson properties. Turner said he apportioned the overage of 127.38 or 135.22 feet, but he did not say how he apportioned it, whether north and south or east and west.
We are ill-equipped on trial de novo to resolve the differences we have noted. We conclude, therefore, that this case should be remanded to the trial court for such further proceedings as may be necessary in clarifying the record and marking the exact location of the division line between the Smith and Goodson properties as found prorated and established by the Turner survey.
This cause is remanded to the Ouachita County Chancery Court for further proceedings not inconsistent with this opinion.
Cause remanded. | [
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John A. Fogleman, Justice.
This is a railroad crossing collision case. The railway company appeals from a $10,000 judgment in favor of appellees, saying it was entitled to a directed verdict, the court erred in submitting the alleged failure of its train crew to keep a lookout to the jury as an issue and the court erroneously gave AMI (Civil) 1801 and refused its requested instruction as to the conditions under which the failure of trainmen to give the signals required by statute became irrelevant. When we view the evidence in the light most favorable to appellees, we cannot say that there was no substantial evidence to present a jury question, both on the failure of the train crew to give the signals required by statute and on the question of maintaining the required lookout.
Taylor was driving a Dr. Pepper Bottling Company truck on the occasion of the collision, which took place at the Bethel Crossing of Highway 69 and appellant’s tracks in Greene County, at about 6:30 a.m. The sun was up and the weather clear. Taylor approached the crossing and stopped 20 to 50 feet from it, looked to his right and to his left, and when he did not see a train coming, put the truck in “granny low” and eased onto the crossing. He never heard a whistle or a bell. The window on the right hand side of the track was cracked two or three inches. There was no train within his vision when he looked down the track. He had a good view for a good quarter of a mile looking to the south, the direction from which the train came. His speed was one to three miles per hour, low enough that he could have stopped if he had seen anything coming. Verneva Lloyd lived less than one-eighth mile from the crossing. She was in bed at home on the morning of the collision. She was awake and the windows in her house were partly up. She heard the roar of the train and the loud noise of the collision, but did not hear any whistle, horn or bell, although she said the whistle could be heard at her house and there was nothing to keep her from having heard it if it had been blown.
The engineer, Donald R. Johnson, testified on discovery deposition that he first saw the truck as the engine rounded a curve near Bethel, and the truck was fifty feet from the crossing and moving at a very slow speed. He said that Taylor later pulled up and stopped. Johnson said that the train’s speed was 55 miles per hour and that this speed had been attained near Brookland in Craighead County. Johnson could not be sure that it was north or south of Brookland, but said it must have been north, because one would travel faster north of Brookland than south of it. After this full speed was attained, Johnson was teaching the fireman and brakeman how to check speed with a stopwatch. The stopwatch showed that 65 seconds elapsed while the train travelled from one mile post to the next and this was translated by the stopwatch operator into 55 miles per hour by looking at a chart in Johnson’s lap. This operation may have been repeated three times. Both the fireman and the brakeman should have been looking at the chart, as Johnson had directed them to do so.
Corporal Maynard of the Arkansas State Police had determined that the impact to the truck driven by Taylor was on its right side about three feet from its rear. By his actual measurement the distance from the crossing to a field road to the south of it was a quarter of a mile. The curve in the railroad was near that point. He found that the view from the crossing for this distance was wide open.
The evidence recited is stated in the light most favorable to appellees and all questions of credibility, some of which may be of some consequence, are resolved against appellant. From this view, we cannot agree with appellant that, as a matter of law there was no issue on the question of negligence in failure to give the required signals. If Taylor, after looking to the south, approached the tracks from 50 feet away at two miles per hour, it would have taken 17.5 seconds to get the front end of his truck to the crossing. During that period of time, the train travelling at 55 miles per hour would have gone 1417.5 feet. When we consider that the truck had travelled a sufficient distance that it was struck only three feet from its rear end, the train could have travelled a much greater distance, even giving due regard to the fact that the emergency brakes on the train were applied when the front end of the locomotive was 300 feet from the crossing. If the jury took this view of the matter, it was entirely possible that at the time Taylor looked south, the train was beyond the curve and not obvious or readily discoverable. If this was the case, the failure of the train crew to give the signals would not have become irrelevant. See Koch v. Missouri Pacific Railroad Co.. 248 Ark. 1251, 455 S.W. 2e 858.
We reach the same result on the lookout question. In this respect, the jury could have denied full weight to the testimony of the train crew. Much of appellant’s case turns upon the testimony of the engineer. To say the least, his estimates of distances proved to be poor. It was shown that, on discovery deposition, he had said that the curve he rounded when he first saw the truck was only 600 or 700 feet from the crossing. At the trial he said it was 1500 feet, and that the train was 600 to 700 feet from the crossing when the truck stopped with its front wheels near a spur track west of the track on which the train was travelling. At the trial, the 50-foot distance of the truck from the crossing when Johnson said he first saw it on discovery deposition had become 200 to 300 feet. The brakeman on the right hand side of the engine, sitting in front of the fireman, never saw the truck until the engineer yelled to them to get down as the emergency brakes were applied. The brakeman said he was earlier checking speed with his own watch as they passed mileposts, did not check speed with the engineer, and the engineer did not show him how to use the chart. He did not remember whether the engineer showed the fireman or not. He did not remember whether it would have been possible for him to have seen the truck when the engine was 500 or 1000 feet from the crossing.
The fireman said the speed had been checked by stopwatch and mileposts a couple of times and that he and the engineer worked together in doing so.
The train would have travelled a total of three miles during the speed checks if three were done. Obviously, if a chart were checked after each check, the subsequent check would have to be commenced at the next milepost after that at which the prior check was stopped. Thus, from the time the stopwatch was started after the third check, the train would have travelled at least five miles while the checking was being done. If it was north of Brookland before the first check was started, and any of the engineer’s time was táken in looking at the chart and demonstrating to other crew members, the train could have been at least six miles north of Brookland when the checking had been completed.
From an examination of the 1975 Highway Map of Arkansas, it appears that it is less than seven miles by rail from Brookland to the Bethel crossing. The distance was not given in evidence, but we feel that it must have been a matter of common knowledge to Greene county jurors. Judicial notice may be taken of locations and distances between towns on customary routes of travel along the state highway system, their railroad connections and the customary routes and usual time for travel between them. 1 Whorton’s Criminal Evidence 89, § 57; 1 Jones on Evidence (6th Ed.) 105, § 2.36. This court takes judicial notice of the distance of towns from the county line. Bender v. State, 202 Ark. 606, 151 S.W. 2d 668. We also take judicial notice of the map of the state and of distances between places. Van Dalsem v. Inman, 238 Ark. 237, 379 S.W. 2d 261. Courts in Arkansas generally take judicial notice of the location of cities and towns. Herdison v. State, 166 Ark. 33, 265 S.W. 84; Cranford v. State, 130 Ark. 101, 197 S.W. 19; Lyman v. State, 90 Ark. 596, 119 S.W. 1116. We also recognized that juries take cognizance of the location of towns. Stribling v. State, 171 Ark. 184, 284 S.W. 38. Judicial notice is commonly taken of official maps. South Shore Land Company v. Petersen, 226 Cal. App. 2d 725, 38 Cal. Rptr. 392 (1964). The Supreme Court of Missouri has long taken judicial notice of maps of the Missouri State Highway Commission and other official highway maps and has used them in determining questions relating to sufficiency of evidence. Holland v. Anderson, 196 S.W. 2d 175 (Mo., 1946); State v. Heisller, 324 S.W. 2d 714 (Mo., 1959); State v. Garrett, 416 S.W. 2d 116 (Mo., 1967). We have no hesitation in resorting to the map prepared and issued by the Arkansas State Highway Department in considering this issue.
The jury might well have found that a proper lookout was interfered with by the timing and teaching, so that the train crew did not start watching the Bethel crossing soon enough.
We find no error as to appellant’s third point. In the first place, we do not agree with appellant that the court erred in giving AMI 1801. The evidence pointed out was sufficient to justify its being given, because we could not say, as a matter of law, that when Taylor approached the crossing and stopped and looked down the track, that the train was readily discoverable by means other than signals. As pointed out in the Comment to this instruction in AMI (Civil, 2d Ed.) p. 192, this is the only situation justifying the refusal of this instruction, when there is evidence that the signals required by statute were not given. Neither can we say that giving the signals would not have aroused Taylor from any preoccupa tion or inattentiveness that prevented him from seeing the approaching train.
But appellant also requested that the jury be instructed on this point as follows:
“When the presence of a train approaching a crossing is known or would have been apparent or discoverable to any ordinary person by means other than whistles or other signals, then the failure of the trainmen to blow the whistle or ring the bell are not relevant factors for your consideration.”
There was conflicting testimony from which the jury could have found that Taylor stopped his truck only 20 feet from the crossing and, after looking toward the approaching train not more than 600 feet away, put his truck in gear and moved at a slow speed onto the track when the engine was about 300 feet away - so close to the crossing that it was impossible for it to be stopped before striking the truck - and that the engineer was blowing the whistle and keeping a proper lookout. It might also have believed that the train could be heard for not less than one-eighth of a mile and that two headlights were burning on the front of the engine, which was red in color. In other words, the jury might have found from the evidence that the presence or approach of the train was so obvious that Taylor cannot be heard to say that he was unaware of it.
Assuming that appellant was entitled to an instruction advising the jury under what circumstances the failure to give warning signals ceases to be a relevant factor, the instruction requested is more favorable to appellant than it would be entitled to have. Appellant relies principally upon our decision that such an instruction was not inherently erroneous in Koch v. Missouri Pacific Railroad Company. 248 Ark. 1251, 455 S.W. 2d 858. But in that case, we pointed out that the instruction given there was not inherently erroneous in cases where there is evidence that the traveler has knowledge of the approach of the train other than by the giving of the signals. It was also pointed out that the instruction given there was not a model one, and that the defects urged on appeal might have been corrected if a specific objection, rather than a general one, had been made. Our decisions on the point of law involved do not seem to be entirely consistent or harmonious. See, e.g., St. Louis & S.F. Ry. Co. v. Ferrell, 84 Ark. 270, 105 S.W. 263; Chicago, R.I. & P. Ry. Co. v. Elzen, 132 Ark. 431, 200 S.W. 1000; Missouri Pac. R. Co. v. Brewer, 193 Ark. 754, 102 S.W. 2d 538; Chicago, R.I. & P. Ry. Co. v. Sparks, 220 Ark. 412, 248 S.W. 2d 371; Missouri Pac. R. Co. v. Powell, 196 Ark. 834, 120 S.W. 2d 349; Missouri Pac. R. Co. v. Sanders, 193 Ark. 1099, 106 S.W. 2d 182; Missouri Pac. R. Co. v. Lemons, 198 Ark. 1, 127 S.W. 2d 120; Missouri Pac. R. Co. v. Howell, 198 Ark. 956, 132 S.W. 2d 176; Missouri Pac. R. Co. v. Hood, 199 Ark. 520, 135 S.W. 2d 329; Missouri Pac. R. Co. v. Cook, 203 Ark. 787, 158 S.W. 2d 699; Missouri Pac. R. Co. v. Dennis, 205 Ark. 28, 166 S.W. 2d 886; Missouri Pac. R. Co. v. Howard, 204 Ark. 253, 161 S.W. 2d 759; Missouri Pac. R. Co. v. Diffee, 212 Ark. 55, 205 S.W. 2d 458; Missouri Pac. R. Co. v. Carruthers, 204 Ark. 419, 162 S.W. 2d 912; St. Louis S.F. Ry. Co. v. Perryman, 213 Ark. 550, 211 S.W. 2d 647.
Some of these cases may be distinguished on the basis of their involving contributory, rather than comparative negligence. Some are cases in which the injured person knew the train was approaching, but attempted to beat it over the crossing. Some are cases where the injured party’s failure to look and listen was beyond dispute. Some are cases where the testimony that the signals were given was undisputed or that everyone in a position to do so, other than the party injured by the crossing collision, had seen and heard the approach of the train.
These decisions could only be harmonized by saying that, when comparative negligence is the issue, as it is here, the failure of the train crew to give the statutory signals ceases to be a relevant factor, (because it cannot be the proximate cause of the injuries) when the presence or approach of the train was known to the injured party by means other than the signals or was so obvious that he cannot be heard to say that he was unaware of it. The words “discoverable to any ordinary person” are more favorable than this to the railroad company. This means something less than obvious. It actually means to us that appellees would be barred from recovery if Taylor had exercised ordinary care to discover the approach of the train. This would \ell the jury to ban appellees from recovery if Taylor were guilty of any negligence and prevent them from comparing the negligence of Taylor and the train crew insofar as the giving of signals was concerned. This is not the law.
The judgment is affirmed.
The Chief Justice dissents.
The width of the crossing and the length of the truck do not appear to have been shown. There is 4’8½" between rails on a standard gauge railroad. 15 Encyclopaedia Britannica, Macropedia, (15th Ed.) 488. It is obvious that the truck is longer than any passenger automobile, unless it be a large bus. | [
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John A. Fogleman, Justice.
This appeal from the judgment of the circuit court affirming the denial of compensation to appellant, the widow of James A. Turner, actually turns entirely upon fact issues resolved against her by the Workmen’s Compensation Commission. The only issue before the commission was whether the myocardial infarction causing Turner’s death arose out of and in the course of his employment. The only issue before the circuit court was whether there was substantial evidence to support the commission’s action. There was medical testimony to support the views of both parties on causation.
The first point for reversal is that the circuit judge erred in denying appellant’s request for oral argument on her appeal to that court. Appellant argues that it was an abuse of discretion to deny the oral argument, saying that Rule 6 of the Uniform Rules for Circuit and Chancery Courts requires the court to allow oral argument if either party desires it. We do not so interpret the rule. It reads:
a. When the Circuit Court learns that an appeal from the Workmen’s Compensation Commission is on the docket the Court will determine if all parties to the appeal are represented by an attorney of record. If a party is not represented by an attorney of record, or if the Court thinks it otherwise desirable, the matter will be set for oral hearing.
b. If all parties to the appeal are represented by an attorney of record the Court will request advice from said attorneys as to whether they desire the matter to be decided upon the record and any briefs in the file, or whether they wish to be heard orally or by briefs, or both; but if no response is had from such attorneys within 10 days the Court will proceed to study the case and announce a decision.
As we interpret this rule, subsection b only requires that the circuit court ascertain the desires of both parties if both are represented by counsel, before deciding whether they should be heard orally. Subsections a and b must be read together. When they are, it seems quite clear that the appeal is to be heard on oral argument when the parties are represented by counsel only if the court thinks it desirable. If it does not think so, the case will be decided upon the record and any briefs included in it. This affords the court the broadest possible latitude of discretion in the matter. Not only do we find that the parties are not entitled to oral argument on appeal to the circuit court as a matter of right, we certainly could not say that the circuit court abused its dis cretion in this regard in this case. The facts as to Turner’s habits and conduct, the requirements of his employment, his activities on the day he suffered the fatal heart attack, his medical history and the probabilities and possibilities relative to causation were fully developed in testimony adduced before the referee and additional testimony presented to the commission. The transcript on file in the circuit court contains extensive briefs submitted to the commission. The circuit judge was justified in feeling that oral argument would serve no useful purpose but that it would unduly and unjustifiably consume judicial time.
Appellant’s second point for reversal is her contention that there was no substantial evidence to support the judgment of the circuit court. This contention is presented from that view of the evidence most favorable to her. This is not the perspective from which we must view evidence in these cases. We must view it most favorably to the findings of the commission whether they be for claimant or the employer. See Curtis Mathes of Arkansas, Inc. v. Summerville, 256 Ark. 340, 507 S.W. 2d 108; Sneed v. Colson Corporation, 254 Ark. 1048, 497 S.W. 2d 673; Tigue v. Caddo Minerals Company, 253 Ark. 1140, 491 S.W. 2d 574. We must affirm unless there was no substantial evidence to support the commission’s finding on causation. Mounts v. Bechtel Corporation, 256 Ark. 318, 507 S.W. 2d 99. No useful purpose would be served, however, by any extensive review of the evidence, as we agree with the circuit judge.
Turner had to exert himself physically in the performance of his duties as a farm foreman for J. B. Lambert, Sr. and J. B. Lambert, Jr. over a period of about three years. He had previously been employed by Lambert Construction Company for about seven years. On the day of Turner’s death, he was taken by J. B. Lambert, Jr. from the fields where planting operations were in progress under Turner’s supervision. Lambert testified that this was done because he discovered that Turner had been drinking beer, in spite of the fact that Turner had previously been discharged for drinking and reinstated upon the condition that he not drink while on the job. J. B. Lambert, Sr., to whose home Turner was taken, testified that Turner was intoxicated. According to these witnesses, Turner was then discharged for violating the condition upon which he was reinstated.
There is conflict in the evidence as to the actual time of day these events took place, but it is clear that Turner was in town and at his home much earlier than normal during planting season. His fatal attack took place at about 4:30 or 5:00 p.m. at his home after he had commenced mowing his lawn. When found, he had fallen to the ground beside his lawnmower and turned blue. A neighbor could find only a faint heartbeat. Turner was taken to the hospital and pronounced dead.
There was evidence which, if accepted by the commission, would have supported an award. The medical testimony was in irreconcilable conflict. This presented a fact question to be resolved by the commission. Gordon v. J. A. Hadley Construction Co., 256 Ark. 577, 509 S.W. 2d 287. The commission recognized the qualifications and credentials of the physician who most strongly supported the claimant’s position had been severely attacked. Other physicians supporting her contentions admitted that there was an element of speculation in arriving at a conclusion that Turner’s employment caused his death or merely stated that it could have, or that it could have predisposed him to a myocardial infarction.
Turner had been a cigarette smoker for many years. There seems to be little doubt that Turner had arteriosclerosis and that it was likely he would eventually suffer a coronary occlusion, which would result in a myocardial infarction. That his exertion in mowing the lawn could have been a substantial contributing factor is virtually undisputed. It also seems to have been conceded that excessive smoking and use of alcohol are factors contributing to heart disease which make one more susceptible to myocardial infarction. The physician who pronounced Turner dead upon his arrival at the hospital stated the cause of death as acute myocardial infarction, saying that the word “acute” meant that it had occurred suddenly. It was his opinion that Turner had suffered a sudden massive explosive-type heart attack, which results from exertion in the immediate past. He expressed the opinion that the myocardial infarction and sudden death were precipitated by the exertion with the lawn mower on a hot day. He considered Turner’s age, sex and smoking as predisposing factors which, together with this exertion caus ed the attack. Another doctor expressed the opinion that the exertion just prior to Turner’s death was the cause of the heart attack and that his employment had nothing to do with his death.
The commission found that the claimant had failed to prove by a preponderance of the evidence that the decedent suffered an injury arising out of and in the course of his employment resulting in his heart attack and death. The evidence to support this conclusion was substantial. Since we cannot say that the evidence was so nearly undisputed that fairminded men could not have arrived at a finding adverse to the claimant (Franks v. Amoco Chemical Co., 253 Ark. 120, 484 S.W. 2d 689)
the judgment is affirmed. | [
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George Rose Smith, Justice.
Frederick Lee Hubbard and Richard Willis, Jr., appeal from a conviction for burglary and grand larceny committed at Carroll Electric Co-op’s warehouse. Each received concurrent 21-year sentences with 12 years suspended. The six points for reversal present in substance three questions.
The material facts are hardly in dispute. On February 10, 1974, four men — Hubbard, Willis, Russell Brewer, and Burlin Witcher — drove to Bentonville from Missouri with the intention of stealing copper, which was readily salable, and taking it back to Missouri. The men made their headquarters at the home of Witcher’s wife, Dora, near the courthouse in downtown Bentonville. That afternoon they drove around together and spotted two places where quantities of copper might be found: Wilkes Construction Company, in Rogers, and Carroll Electric, in Bentonville.
After dark the four men drove to Rogers in a pick-up truck, burglarized the Wilkes place of business, returned to Bentonville, and left the stolen goods in Hubbard’s car at Dora Witcher’s house. At about midnight they drove to the Carroll Electric warehouse and spent several hours in loading the pick-up truck with a number of tools and more than 1,500 pounds of copper wire.
The men then started back to the Witcher house. Near the courthouse the overloaded truck aroused the suspicion of Officer Foster, a city patrolman on night duty. Burlin Witcher, upon seeing the officer, turned into a residential driveway and let the other three men get out of the vehicle. Officer Foster got a good look at Hubbard, near a street light. Witcher became alarmed and took off in an attempt to escape the officer. After a brief chase Witcher’s truck overturned in an open field. Officer Foster radioed for assistance, and Witcher was taken into custody. The stolen merchandise was identified as having come from the Carroll Electric warehouse, which had obviously been burglarized.
In the meantime the other three men made their way back to the Witcher residence. They decided to take another vehicle and see what had happened to Witcher. As they approached the site of Witcher’s accident they saw police cars and thought it best to return to Dora Witcher’s house and go to bed. A police officer found the men there early in the morning.
Two days later all four men were charged with the burglary and theft at Carroll Electric. Hubbard and Willis were tried together. Brewer testified for the State, narrating many of the facts that we have set forth.
Three of the points for reversal arise from an incident during the cross-examination of Brewer. On direct examination there had been no reference to Wilkes Construction Company or to the burglary there. On cross-examination, however, defense counsel inquired about the afternoon visit to Wilkes, including the men’s having “cased the joint.” Counsel also asked about the second trip to Wilkes that night, though not mentioning the burglary. The interrogation continued to follow the sequence of events until this interchange occurred:
Q. Well, what time did you come back to Bentonville?
A. I figure around ten-thirty or eleven.
Q. And where did you go then?
A. To the house. Dora’s house.
Q. Witcher’s house again?
A. Yes, sir.
Q. How long did you stay at Witcher’s house?
A. Just long enough to get all the stuff out of the pick-up and put it in Freddie’s car, from Wilkes.
Q. From what?
A. From Wilkes Construction.
Mr. Duty: Í ask that that be stricken, Your Honor.
The Court: Denied. You inquired into it.
Mr. Duty: I asked him how long he stayed at the Witcher house.
The Court: Well, that’s all right.
Mr. Duty: Save our exceptions. Well, he’s not charged with that, but I’m asking the court to make my record that the court instruct the jury that he is not charged with anything except this one.
The Court: All we’re trying is the charge on this one incident.
Later on the prosecuting attorney referred to the matter in his closing argument. The court overruled Mr. Duty’s request that the reference be stricken.
It is argued, on the authority of cases such as Alford v. State, 223 Ark. 330, 266 S.W. 2d 804 (1954), that Brewer’s answer should have been stricken, because it referred to another criminal offense. We do not agree. In the first place, counsel had already alluded to the other burglary by asking Brewer if the men had cased the joint and by bringing out their second visit to Wilkes after dark. The cat was already almost completely out of the bag. Secondly, the answer was responsive to the question, “How long did you stay at Witcher’s house?” That question did not necessarily call for an answer in terms of minutes or hours. It is not error for the court to refuse to exclude a responsive answer on cross-examination. Ark. Power & Light Co. v. Harper, 249 Ark. 606, 460 S.W. 2d 75 (1970). Inasmuch as the testimony was properly before the jury, the prosecutor was entitled to mention it in his closing argument.
In two points for reversal it is argued that the testimony of Brewer, an accomplice, was not corroborated by other evidence tending to connect Hubbard and Willis with the commission of the offense. Ark. Stat. Ann. § 43-2116 (Repl. 1964). We find the State’s corroborating testimony to be adequate. Dora Witcher testified that her husband, Brewer, Hubbard, and Willis were together during that day. She said that the four left the house at about eleven o’clock that night and that Brewer, Hubbard, and Willis returned. The burglary was shown to have taken place during the night. Officer Foster saw four men in the truck after the burglary and identified Witcher and Hubbard. Thus there was adequate corroborating testimony to justify the jury in finding that the four men committed the crimes together. For somewhat similar cases, involving the participants’ association before and after the offense, see State v. Bassett, 86 Ida. 277, 385 P. 2d 246 (1963); Lamp v. State, 231 Md. 537, 191 A. 2d 224 (1963); People v. Kress, 284 N.Y. 452, 31 N.E. 2d 898 (1940); Hill v. State, Okl. Cr., 500 P. 2d 1080 (1972).
The sixth point for reversal relates to defense counsel’s request that Officer Prather be recalled for cross-examination. The officer could not be recalled at once because, although he had been subpoenaed by the prosecution and not released, he had gone to Oklahoma after he first testified. The court did not abuse its discretion in refusing to delay the trial, because the proffered additional testimony was merely cumulative and, as far as the record shows, could have been elicited by cross-examination in the first instance.
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Elsijane T. Roy, Justice.
This case presents a novel issue which has not heretofore been considered by this court. Both appellee and appellant have favored us with excellent briefs.
The appellant, Farm Bureau Mutual Insurance Company of Arkansas, Inc., or on about December 2, 1970, contracted to insure Jack Hardman, d/b/a Hardman’s Sporting Goods, against liability for certain hazards in his business operations.
The appellant’s broad general insuring language in the subject policy provided as follows:
Coverage A - Bodily Injury Liability. To pay on behalf of the insured all sums which the insured shall become legally obligated to pay as damages (except punitive damages) because of bodily injury, sickness or disease, including death at any time resulting therefrom sustained by any person. . . .
While the policy was in full force and effect, the insured’s agent sold gunpowder, which was to be used as an explosive in a sound-making device at football games, to some minors including Joseph Shelby Lyon. Appellee Lyon, when using the gunpowder for this purpose, was severely and permanently injured by an explosion of the gunpowder. Thereafter, he filed suit against the insured alleging negligence in the sale of the gunpowder. The trial resulted in a $38,500 judgment in appellee’s favor against the insured. The appellant refused to defend on the basis of an exclusion contained in the policy which provides as follows:
This policy does not apply under Coverages A (bodily injury liability) ****, to products hazard, which is defined as follows: (emphasis supplied)
(1) the handling or use of, the existence of any condition in or a warranty of goods or products manufactured, sold, handled or distributed by the named insured, if the accident occurs after the insured has relinquished possession thereof to others and away from the premises owned, rented or controlled by the insured:
(2) operations, if the accident occurs after such operations have been completed or abandoned at the place of occurrence thereof and away from the premises owned, rented or controlled by the insured.
In joining the issues appellant filed a motion for summary judgment and later an amended motion for summary judgment alleging there was no genuine issue as to any material fact and that the appellant was entitled to judgment as a matter of law. Appellee filed a cross-motion for summary judgment and response to defendant’s motion which alleged that the exclusion in the subject insurance policy, relied upon by appellant as its sole defense, is inapplicable as a matter of law and, there being no genuine issue of material fact on this point, appellee is entitled to summary judgment on his complaint. Furthermore, in the alternative, in response to appellant’s motion for summary judgment, appellee states that appellant’s agent made a material misrepresentation or representation to its insured, Jack Hardman, on which he relied; the representation was to the effect that the subject insurance policy covered Hardman against the type of risk which gave rise to appellee’s injuries; and appellant is bound by such representation or misrepresentation.
The court, after due consideration of the respective summary judgment motions, attached affidavits and certain designated portions of depositions and on December 20, 1974, rendered a summary judgment for appellee in the sum of $38,500 plus interest, penalty and a reasonable attorney’s fee in the sum of $5,000. The appellant timely perfected this appeal.
For reversal the appellant relies upon the following points:
1. The trial court erred in refusing to grant defendant’s motion for summary judgment^and
2. The trial court erred in determining that a material fact question existed in the event the validity of the exclusion was determined in defendant’s favor by Summary Judgment.
The issue before us, as far as the exclusion is concerned, is whether the judgment awarded appellee Lyons falls within a risk covered by the insurance policy. Stated conversely, was the negligent sale of the gunpowder, under the circumstances of this case, a risk which is excluded from the terms of the policy?
This court has not passed on the precise question presented here and there is a definite split on the point at issue in other jurisdictions. Some courts have given a broad sweep to the “products completed operations” exclusion (which this exclusion is often called) in favor of the insurer to an extent which this court finds unwarranted upon consideration of the policy as a whole. However, other courts have read the exclusion in conjunction with the basic insuring clause and looked to see whether an off-premises injury was prokimately caused by on-premises negligence as opposed to off-premises negligence or a defective product.
We think the better view is that enunciated in the trial court’s opinion and in the cases supporting the reasoning of the trial court in granting appellee’s motion for summary judgment. The language of the exclusion clearly appears to indicate it is to apply to “products completed operations” only-
Appellant’s brief calls attention to some general insurance law with which this court does not find fault. The fault lies in the appellant’s application of the principles enunciated. Some of appellant’s citations and quotes therefrom might more appropriately be cited in behalf of appellee.
We call attention to one of appellant’s citations of this nature which indicates that in all probability the exclusion was drafted to cover the ever broadening products liability field and has no application to the general insuring provision.
7A Appleman, Insurance Law and Practice, § 4508, p. 98, (1962) states:
Products liability insurance, is becoming increasingly important with the passage of time, in view of the ever present potentialities for injury resulting from such things as lime compounds used for waterproofing, cosmetics, drugs, certain dyed materials, explosives, and other products possessing inherent hazards. Clearly a company which writes an ordinary liability policy does not want a risk extending without end as a result of work performed or merchandise sold; nor, conversely, would a company willing to undertake the products risk want to assume the general liability burden, (emphasis supplied)
****
It is scarcely just either to deprive a purchaser of the protection he is entitled to receive or to extend one type of coverage to fit a completely different situation from that contemplated, (emphasis supplied)
Appellee contends, and we agree, that this accident was the type for which he purchased coverage since the negligence which was the proximate cause of the accident occurred on premises insured under the terms of the policy.
A number of the citations upon which appellant relies are distinguishable. In Dixie Furniture Co. v. Central Assurity and Ins. Co., 173 F. Supp. 862 (E. D. Ark. 1959), a loss occurred off of the insured’s furniture store premises when the insured’s employee, repossessing a stove, negligently failed to cap a gas pipe. After a third party was injured and sued the insured, the insured there sued the insurance company. Judge Henley noted that the accident arose from the “completed operations” sub-section of the “products provision.” In other words, a work project away from plain tiff’s premises was involved and this renders the case entirely different from the case at bar. The negligence which caused the accident occurred off the insured’s premises as contrasted with the negligence here of Hardman’s agent which occurred in his store.
Appellant’s citation, Bituminous Casualty Corp. v. Horn Lumber Co., 283 F. Supp. 365 (W. D. Ark. 1968), supports appellee, not appellant. In Bituminous a person was injured when straps binding lumber on a lumber truck broke during an unloading procedure allegedly because of a defect in the binding materials. In construing this exclusion, Judge Miller wrote:
The endorsement is written, apparently, to exclude coverage for injuries which result from defects in products after the product has been given up by the insured and placed in the stream of commerce. In other words the policy did not cover ‘products liability.’
In the case at bar neither party alleges any defect in the gunpowder purchased by Lyons.
In Standard Accident Insurance Co. v. Roberts, 132 F. 2d 794 (8th Cir. 1942), the insured, a seller of furniture and appliances in the State of Arkansas, negligently installed a refrigerator in a customer’s home. The customer and his family were injured by escaping gas that very night. The loss was excluded under the Products-Completed Operations hazard, largely because it occurred away from the insured’s premises. Appellant can find no support from this citation as, again, we find a work project away from the insured’s premises.
We are not overlooking other citations furnished by appellant in support of its position, but we do not find the reasoning upon which they are buttressed to be as sound as that found in St. Paul Ins. Co. v. Coleman, 316 F. 2d 77 (8th Cir. 1963), affirming 204 F. Supp. 713 (W. D. Ark. 1963). In that case the general insuring clause provided coverage for hazards related to the “ownership, maintenance or use of the premises and all operations” (of a public boat dock business). The insured’s employee had negligently refueled plaintiff’s boat and after the boat had drifted about 73 feet from the boat dock, it caught Fire, injuring several persons. The insurance company denied coverage based on the Products-Completed Operation exclusion (the exclusion relied upon by defendant in this case) which provided that:
.... ‘[I]f the accident occurs after possession of such goods or products (i.e., those “manufactured, sold, handled or distributed by the Named Insured”) has been relinquished to others **** and if an accident occurs away from premises owned, rented or controlled by the Named Insured, coverage for such an “occurrence” is not afforded by its policy. . . . ’ (316 F. 2d, p. 79) (emphasis supplied)
The Eighth Circuit held that the negligent refueling of gasoline did not render it a “products case” which would be excluded under the “Products-Completed Operation” exclusion. The court stated:
.... The appellees do not make any claim that they were injured because of the nature or condition of the gasoline sold to Stover (plaintiff), (emphasis supplied by the court)
*****
.... The place where the fire ‘occurred’ is not here’controlling under the ‘Premises-Operations’ coverage afforded by appellant’s policy.. (316 F. 2d, p. 80)
The insurance company in Coleman attempted to do exactly what the appellant here is trying to do, i.e., tie the “away from premises” exclusion onto the basic coverage. The Eighth Circuit rejected this attempt:
Under the terms of appellant’s policy, ‘Products-Completed Operations’ is the only coverage related to ‘away from premises’ exclusion. There is no such limitation or exclusion from coverage as to ‘Premise-Operations.’ Appellant’s attempt to read that limitation into the ‘Premises-Operations’ coverage is not justified by any rule of construction known to us. An unbiased reading of appellant’s policy must convince a reasonable mind that such is not a proper legal interpretation thereof. (316 F. 2d, p. 80)
Judge Miller quotes from Appleman:
‘. . . . [A]n injury or loss may result while an activity is in progress, and prior to the completion thereof, either as the result of an act of negligence or an omission. That is what is embraced within the ordinary liability aspect of a public liability policy. But if the operation has been completed, and liability results thereafter either by reason of a defect in merchandise or improper workmanship, that is called ‘products liability’ or ‘completed operations’ (here “products hazard”), the protection of which can be purchased for a premium. . . . ’ (283 F. Supp., p. 368) (emphasis supplied)
Another case following the same line of reasoning as Coleman and almost identical with the case at bar is McGinnis v. Fidelity and Casualty Co. of N.Y., 276 Cal. Appl. 2d 15, 80 Cal. Rptr. 482 (1969). In that case a fifteen year old boy purchased a can of gunpowder from the insured ammunition dealer. A week later the powder exploded and McGinnis was injured. He sued the dealer and obtained a judgment, then he sued the insurance company which had declined coverage. The California court noted that the insured ammunition dealer had not paid a premium for the following specific coverage:
‘Division 4-Products-Completed Operations.
(1) Goods or products manufactured, sold, handled or distributed by the named insured, or by others trading under his name, if the accident occurs after possession of such goods or products has been relinquished to others by the named insured or by others trading under his name and if such accident occurs away from premises owned, rented or controlled by the named insured. . . . ’ (80 Cal. Rptr., p. 483)
The defendant insurance company contended that the failure to buy this specific coverage excluded coverage, but the California court held that the dealer was insured under the general insuring clause. In regard to the Products-Completed Operation provision, that court stated:
One would be hard put to express a ‘products liability’ exclusion more clearly than does the foregoing clause upon which appellant relies. Since Piper (ammunition dealer) paid no premium for such coverage, the first question that emerges is whether the accident in this case comes within the doctrine of products liability and, a fortiori, within the exclusion.
In Lessak v. Metropolitan Casualty Ins. Co. of N.Y., 168 Ohio St. 153, 151 N. E. 2d 730 (1958), the insured was an individual doing business as a hardware company and he sold some BB’s to a minor in violation of state law. Subsequently the minor was injured by the BB’s. The involved insurance policy has the same general insuring clause as to bodily injury liability as we have in the case at bar. The policy in Lessak offered additional coverage under “Division 3 Products” and the coverage offered there is set forth in language almost identical to the exclusion in the policy in the instant case. The insured in Lessak had not purchased coverage under Division 3 and contended that he was covered under Division 1. The insurance company declined coverage on the contention that the risk came under Division 3, which the insured had not purchased. The court rejected this contention and held for the injured party and the insured. After pointing out there was not a defective product involved, the court stated:
A careful perusal of division 3, ‘Products,’ discloses that it is concerned with reference to the existence of any conditions or warranty of goods or products manufactured, sold, or handled or distributed by an insured, and that it is not applicable to the hazard described in division 1, upon which plaintiff must rely.
It is not claimed that the B-B pellets, which plaintiff’s employee is alleged to have sold to the boy **** were in any manner defective, or that there was any breach of warranty in the sale of them. In fact, there is nothing relative to the condition of the pellets themselves, (emphasis supplied)
It is true that the accident for which damages are claimed **** arose away from plaintiff’s premises and the insurance company strenuously maintains that the hazards under division 1 contemplate only accidents occurring upon the premises. However, the language of division 1 does not so state. Such division is only a description of the hazard, and that was the alleged unlawful selling of the BB shot on the premises of plaintiff. Assuredly, that was an operation necessary or incidental to the purpose for which the premises were used. There is no statement in the policy with reference to the place where the accident occurs, and if the insurance company intended to limit the place of the accident, as well as the incidence of the hazard, to the premises of plaintiff, it could easily have so stated in the policy. (151 N.E., p. 734-5) (emphasis supplied)
As in Lessak the general insuring clause in the case at bar has no on-premises limitation as to situs of the accident. The negligent sale of the gunpowder was on insured’s premises. The sale was the proximate cause of the accident and of appellee’s injuries (not a defective product — nor completed operations away from the premises of the insured). Therefore, it is clear the exclusion has no application herein.
Having decided the motion for summary judgment in appellee’s favor it is unnecessary to reach or decide the issue raised by appellee regarding any alleged representations or misrepresentations by appellant’s agent.
Accordingly, the judgment of the lower court is affirmed in all particulars, including penalty and attorney’s fees.
Fogleman, Jones and Byrd, JJ., dissent. | [
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Frank Holt, Justice.
Appellant brought this action to set aside a quitclaim deed from appellee George M. Geheb to his appellee wife,_jCecil. Appellant alleged that the transaction was a fraudulent conveyance and was done for the purpose of delaying and hindering the appellant in the collection of a judgment against George. The chancellor held that the property is Cecil’s homestead and, therefore, is not subject to the claim of appellant as a judgment creditor. For reversal, appellant contends the chancellor erred in determining the homestead interest and refusing to set aside the conveyance. We cannot agree.
Appellant acknowledges that Cecil properly claims the property as her homestead. Appellant argues, however, that Cieorge has shown no homestead interest in the property. Cecil lives in Ft. Smith on the property in question and Cieorge lives in Newton County where she lives with him occasionally. Therefore, his quitclaim deed to Cecil should be set aside as a fraudulent conveyance and appellant should be permitted to execute upon and sell George’s interest subject to Cecil’s homestead rights.
Ark. Stat. Ann. § 30-210 (Repl. 1962) provides that when the husband neglects or refuses to claim his homestead rights, his wife may intervene and set it up. The stipulation, as abstracted by appellant, is as follows:
Prior to the taking of any testimony, counsel for the parties made statements and stipulations to the effect that the judgment in 1968 was admitted; that Cecil Geheb was the sole owner of the realty prior to her marriage; that a tenancy by the entirety was created by the use of a third party; that the judgment was not of record in Sebastian County until 1973; and that the realty was conveyed in 1971 by Mr. Geheb to Mrs. Geheb without monetary consideration.
In addition, the realty was the homestead of Cecil Geheb who obtained title from her father. All subsequent indebtedness had been paid by Mrs. Geheb. The reconveyance by Mr. Geheb was made three days after the last payment on the mortgage.
In construing the homestead exemption, we have recognized that a conveyance destroys the homestead claim. See Drennen v. Wheatley. 210 Ark. 222, 195 S.W.2d 43 (1946), where we quoted as follows:
The general rule is that, in the absence of specific constitutional or statutory authority therefor, there is no right on the part of a debtor to claim exempt funds arising from the voluntary sale of his homestead. ‘In the absence of statutory provisions to the contrary, the voluntary sale of homestead property is held in a majority of jurisdictions, to be a complete extinguishment of the homestead right; and consequently the proceeds of such sale, until invested in other exempt property, may be subjected to the claims of creditors.’
See also Obenshain v. Obenshain, 252 Ark. 701, 480 S.W.2d 567 (1972). Thus from the foregoing discussion, it would appear that any homestead right that Cecil Geheb may have had at the time of the conveyance to her husband was relinquished by that conveyance.
Furthermore, a wife can only claim one homestead under Ark. Const. Art. 9, §3. This was recognized in Grimes v. Luster, 73 Ark. 266, 84 S.W. 223 (1904). In that case Hugh Grimes died leaving a widow. He had a homestead at Newport. The widow moved to Batesville, married and acquired a homestead with her second husband. She died leaving four children all of whom were adults except Harry Grimes. The three older children conveyed their interest in the Batesville property to Mark Luster. Harry brought the action to recover the rents and profits on the theory that he as a minor was entitled to claim a homestead right in the Batesville property. In holding that a minor could not acquire two homestead rights, we there stated:
The beneficence of these provisions extend in favor of the children to the homestead of either parent. So long as the family circle is not broken by the death of either parent, there can be but one homestead; and it matters not whether that is the homestead of the father or mother. Thompson v. King, 54 Ark. 9; Wilmoth v. Gowett, 71 Ark. 594. And, as heretofore shown, successive homestead fights may be inherited by minors in cases like this one at bar where the widow acquires a homestead during her widowhood in her own right, but both cannot be enjoyed at one and the same time. Such an enjoyment would present an anomaly, and one not to be tolerated because contrary to the spirit and letter of the homestead exemption. . . .
In Hollis v. State, 59 Ark. 211, 27 S.W. 73 (1894), in discussing the nature of the homestead right, we said:
In the case of Harbison v. Vaughan, 42 Ark. 539, this court said that the protection of the family from dependence and want is the object of all homestead laws; that apart from his family, the debtor is entitled to no special consideration. As the protection of the family is the object of the homestead law, so it has been held that desertion of the family by the husband, still leaving the family occupying the homestead, is not an abandonment of the homestead.
In Rosenberg v. Jett, 72 F. 90 (1894) Williams, District Judge, commented on the matter as follows:
I am clearly of the opinion that during coverture, and while the husband and wife are not separated, but are living together as husband and wife, there can be no such thing as a separate homestead of the wife, separate and apart from her husband, that the domicile of the husband is the domicile of the wife, and, wherever he may erect a homestead, it is, in the contemplation of the law, the homestead of the husband and wife. . . .
See also Bruce v. Bruce, 176 Ark. 442, 3 S.W.2d 6 (1928).
We are firmly convinced that when Cecil Geheb conveyed to a third party for the purpose of creating an estate of the entirety, she also conveyed any rights of homestead that she may have had prior thereto. Furthermore, any rights of homestead that she could claim thereafter would have to arise out of the marriage relationship to George Geheb. It necessarily follows that when appellant stipulated that Cecil Geheb had a homestead in the property, they necessarily stipulated that that homestead was one acquired during the marriage which would exempt the property from sale under the homestead laws from the creditors of either the husband or the wife. In view of Ark. Stat. Ann. § 30-210, <¡u/>ra, it matters not that George Geheb did not claim the homestead exemption.
Affirmed.
Fugleman, J., dissents. | [
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Lyle Browñ, Justice.
Pulaski County Judge B. Frank Mackey was convicted of violating the county purchasing procedure act. Ark. Stat. Ann. § 17-1601 et seq. That act requires bidding on most county purchases where the estimated purchase equals or exceeds $1,000. It also prohibits a purchasing official from splitting any item with the intent to avoid bidding procedures. The four indictments on vPhich Judge Mackey was convicted may be summarized as follows:
Indictment 77664 charged that appellant on eight separate days in September, 1973, purchased corrugated metal pipe with the intent of splitting a single purchase of $5,-325.48 into eight separate purchases under $1,000 to avoid bidding procedures.
Indictment 77666 charged that appellant on seven separate days in July, 1973, purchased corrugated metal pipe with the intent of splitting a single purchase of $6,083.78 into seven separate purchases under $1,000 to avoid bidding procedures.
Indictment 77668 charged that appellant on August 9, and 14, 1974, purchased a quantity of culvert with the intent of splitting a single purchase of $1,802.82 into two separate purchases under $1,000 to avoid bidding procedures.
Indictment 77671 charged that appellant purchased personal property assessment forms at a total cost of $8,068.72; and that eight separate orders were made, splitting the orders in amounts under $1,000 to avoid bidding procedures.
For reversal appellant contends (1) that the actual purchases described in the indictments were made by people other than appellant and that the sole participation of appellant was the approval of the claims for the purchases; (2) that the State failed to prove criminal intent; and (3) that it was error to give an accessory instruction.
The first witness called by the State was Frank Win-burne, a certified public accountant who had been retained by the grand jury to audit the county records with regard to a multitude of purchases. Through him was introduced a summary of the purchases described in the four indictments. From a study of those records and conferences with county officials and employees he ascertained that no bids were taken on the purchases described in the four indictments. He further ascertained that the orders described in the first three indictments (metal pipe culverts) were all placed with the manufacturers by appellant’s employees; that the order for the assessment forms was placed with the printing company by the county assessor; and that appellant had nothing to do with the purchases except to pass on the claims filed by the sellers.
Official county records of the involved purchases were introduced through the county clerk. The amounts of the purchases are not questioned, nor is it contended that bids were taken. Mr. A1 Stafford, owner of Arkansas Culvert Company, verified the purchase and delivery of the metal pipe and culverts. The witness said he had no dealings with appellant in connection with any of the purchases. He assumed that the orders were placed by the county road and bridge supervisor, W. T. Morgan. Witness Robert E. Hill, representing Democrat Printing and Lithographing Company, produced the records of purchases of personal property assessment forms which formed the basis of the fourth indictment. He verified the amount of each invoice and delivery. He testified that the purchases were made by L. E. Tedford, the county assessor. “All Judge Mackey had to do with the purchase was that he ultimately had to pay for it.”
The county comptroller, C. B. Rotenberry, described the procedure for processing claims against the county. The supplier makes out one claim form for supplies furnished during a given month. He attaches thereto the various invoices supporting the total amount of the claim. The invoices are checked by the comptroller and he satisfies himself that the purchase has been authorized, the products delivered, and the correct billing extended. Thereupon the comptroller af fixes his signature on the outside of the claim form below this imprint: “The within claim, together with all written and printed matter thereto attached, have been by me carefully examined and checked, and same is hereby certified as correct in amount, and a legal demand against Pulaski County in the sum of $_” Below the comptroller’s signature is this printed form: “Examined and the sum of $ _ allowed out of appropriation for expense of _this _day of _, 19-
County Judge.”
Mr. Rotenberry testified he examined the invoices supporting the claims upon which the first three indictments were based and saw no reason not to approve them. He said he noted that the purchases were made on different invoices with different dates of purchase; that each invoice was under the limits requiring bidding, and he considered them separate and distinct purchases. With reference to the assessment supplies he said he contacted the county assessor and verified the invoices before approving the claim therefor.
The State also called Theron Morgan. He has worked for Pulaski County under the last five county judges. His work is principally concerned with bridge and road construction and repair. Since 1969 he has been the road and bridge commissioner, working, of course, under the direction of the county judge. He verified having made the purchases described in the first three indictments and related the three particular jobs to which the materials were assigned. In fact he said he had been doing the purchasing for road and bridge work for the past 23 years — “18 years under Judge Campbell and five under Judge Mackey”. In that capacity he executed the purchase orders and approved the invoices when they were filed with the county, usually at the end of the month. After his (Morgan’s) approval “Mr. Rotenberry gets it from there, checks it out and then presents it to the judge”. He asserted he was sure that “all this culvert was in the ground with water pouring through it before Judge Mackey knew the culvert had been bought”.
Witness Morgan described his method on construction projects, which can be reasonably interpreted as some explanation for “installment” purchase of materials: “When we start to repair a road like these three, we figure out what material we are going to use as we go along. We do not put our plans on the drawing board. We have a road built before most anyone else could get it on paper. We travel a road and figure out ahead of time how many culverts we are going to use. We know in general terms where our trouble spots are. Then we have to figure out the square foot area of culvert that will be required as we go along.”
Appellant B. Frank Mackey testified that with an annual budget of over three million dollars he had to rely on employees for much of the paper work required of the office. For that reason he said W. T. Morgan was authorized to make purchases for the road and bridge department and the comptroller, Mr. Rotenberry, was counted on to audit all invoices for purchases of any nature. In addition, a full-time state auditor is assigned to Pulaski County. The witness said the state auditor, who goes over all county accounts, had never criticized the purchasing procedures. He said the first knowledge he had of the purchase of the materials in question was when the claims reached his desk. He said he noted they were approved by Mr. Rotenberry as being a just claim, that he examined the claims and saw nothing to indicate there was any problem with regard to the manner in which the purchases had been made. With respect to the purchase of assessment forms, again he said he had no connection with the actual purchase. He testified that it was approved by Mr. Rotenberry and initially authorized by the county assessor, and he relied on the latter to conform to the purchasing requirements.
Other than evidence of the four transactions forming the basis for the four indictments there is evidence of divers other transactions which generally followed the same pattern as those forming the basis of the four convictions. For example, there was evidence of a lease-purchase contract for a bulldozer costing $51,081; there was evidence of the purchase of asphalt sealing materials for $2,750; and there was evidence of a transaction with Dixie Culvert Company dated July 5, 1973, for a total of $1,802.58 which was split into two invoices. We are unable to tell whether the recited additional transactions were introduced to support indictments which were dismissed during the course of the trial; or to support in dictments wherein the jury returned verdicts of not guilty; or to substantiate the indictments wherein the jury was unable to reach a verdict. Additionally, the transactions may have been introduced to show an overall scheme of operation. Our dilemma is caused by the fact that only those indictments upon which convictions were returned are in the record. Other indictments are referred to only by case number. However, since the State’s own evidence relative to the four purchases forming the basis of the convictions shows that those purchases were made, not by Judge Mackey, but by Mr. Morgan and Mr. Tedford, evidence of other transactions are of no benefit. We shall have more to say about that later.
The county purchasing procedure act imposes a penalty on an official who intentionally violates the provisions of the act. Ark. Stat. Ann. § 17-1613 (Repl. 1968). The State did not produce a single witness to testify that splitting practices were followed. The State relied solely on the suspicious fact that on eight separate days in September, 1973, corrugated metal pipe was purchased, each purchase order being under $1,000; that on seven separate days pipe was purchased, each order being under $1,000; that on August 9, and 14, 1974, two purchases were made, each under $1,000; and that nine separate invoices were approved for the purchase of tax assessment forms. It is significant that the suspicion is not corroborated by proof of fraud, personal gain, or a showing that the suppliers were paid more than the fair market price for the products. Of course, bare suspicion of guilt is not enough and we hold that the State did not meet its burden of proof; in other words, we find no substantial evidence of guilt, either as a principal or accessory, of intentional violation of the act.
Another controlling factor contributing to our action is that Judge Mackey, in approving the claims, was acting in his capacity as presiding judge of the county court. The acts of approving the claims did not constitute purchases; the purchases had already been made during the months previous to their approval. The legislative act of which he was accused of violating has a single purpose, that of regulating purchasing procedures; hence the title of the chapter, “County Purchasing Procedure”. The appellant was tried on the theory that he violated the purchasing act by splitting purchases. Ark. Stat. Ann. § 17-1603 (d) (Repl. 1968). The overwhelming proof was to the effect that appellant’s sole participation was in approving claims for purchases made by other parties, and there is no evidence of conspiracy between the judge and those making the purchases. In fact the grand jury specifically found no evidence of fraud.
Finally, the State argues in essence that appellant is criminally liable for the acts of his subordinates. To support that contention it cites Russell v. Tate, 52 Ark. 541, 13 S.W. 130 (1889). That case holds that the mayor was civilly liable for ordering the payment of an illegal appropriation. Also cited is Davis v. Jerry, 245 Ark. 500, 432 S.W. 2d 831 (1968). That was a civil proceeding. We there held that the county judge should be enjoined from failing to follow the county purchasing procedure act. Even if there might be circumstances under which a county judge could be criminally liable for the acts of his subordinates we cannot agree that such liability should be attached under the facts in this case. In fact the only Arkansas case in point which has been called to our attention does not favor the State’s position. Robinson 6 Warren v. State, 38 Ark. 641 (1882).
Reversed and remanded.
George Rose Smith, Jones and Byrd, JJ., dissent. | [
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CARLETON Harris, Chief Justice.
Bill C. Nelson II was convicted of slaying his wife, Virginia S. Nelson, the jury giving him life imprisonment for first degree murder. From such conviction, appellant brings this appeal. For reversal, six points are asserted, which we proceed to discuss, though not in the order set out by appellant.
It is contended that the court erred in overruling appellant’s motion for a directed verdict as to the charge of first degree murder because of insufficiency of the evidence.
We do not agree. The evidence reflected that Nelson was estranged from his wife at the time of the shooting; that on the Thursday before the shooting (which occurred around midnight on Saturday), appellant called Laura Spaulding, a friend of his wife, and asked if his wife had been seeing her first husband, stating, “if he saw them out together he would blow their heads off”; that on the next day, Nelson went to the apartment of Mrs. Spaulding, his wife being present, and though not getting into the apartment, argued with his wife from the outside, then left, after.which Mrs. Nelson called the police. Nelson again returned to the apartment on Saturday afternoon, looking for his wife’s ex-husband, went through various rooms, argued with his wife, and Mrs. Spaulding requested him to leave. The witness and Mrs. Nelson left the apartment to meet some friends, and upon returning around midnight, found Nelson crouched beside the fence with a rifle. He ordered them into the house. There, in the presence of seven other persons, appellant raised his gun, cocked it, and shot his wife to death. There was testimony that he remarked, “I came, I did what I intended to do” and left. There was also evidence, which will be more fully discussed in the next paragraph, to the effect that Nelson had taken out an insurance policy on his wife, to which she objected, about two weeks before the shooting. Of course, the evidence was sufficient to sustain the conviction, even without the testimony relating to insurance.
W. H. Weldon, manager of an insurance company, who was Nelson’s last employer, testified that appellant had written a policy of life insurance on his wife in the amount of $10,000. Weldon said this was a “joint policy”, both Nelson and his wife being the other’s beneficiary. The witness said that a sales promotion campaign was in progress, with extra rewards to be given to salesmen who were successful during the campaign. Guy Morrow, a brother-in-law of Mrs. Nelson, testified that he was at the Nelson home when the insurance policy was discussed and that Mrs. Nelson did not seem pleased. He said that he overheard Nelson say “that if she didn’t sign the policy, he was going to be very irritated and there would possibly be some family problems.” Subsequently, he testified that Nelson “kind of laughed and said, ‘Well, I just may kill her and collect the money myself.’ ”
Counsel for appellant argues that this testimony was not relevant in any way “other than upon some wild theory as to possible motive for murder.” Counsel contends that the State’s attorney did not offer this evidence in good faith, knowing that the policy was sold during a sales campaign and that all the company salesmen were being encouraged to take out these policies. We do not agree with this statement. While it appears from the record that jealousy was the primary motive for the shooting, the fact remains that there can be more than one motive and the prosecuting attorney was justified in offering this evidence to the jury. After all, it is the function of that body to determine what facts are significant or not significant, and whether the fact under discussion had any bearing on the killing.
Appellant argues that the court erred in permitting jurors to ask questions of the witnesses. This happened about a half dozen times, and the judge was very careful to tell each witness not to answer until he had held the question to be proper. A detailed discussion of this point is unnecessary since in the case of Ratton v. Busby, 230 Ark. 667, 26 S.W. 2d 889, we held to the contrary, citing 58 Am. Jur. Witnesses, § 558 with approval to the effect that it is not error for a trial judge to give the jury permission to interrogate a witness without any special request from them so long as the questions asked are germane to the issue. In the case before us, as previously stated, the court was quite careful in determining that only proper questions were propounded and we see no abuse of discretion.
It is asserted that the court erred in permitting the prosecuting attorney to ask leading questions on re-direct examination. Six questions are listed, all of which, with the possible exception of one, we would not class as leading questions, but even if some of the questions could be considered in that category, we certainly can find no prejudice.
It is argued that on four occasions, the trial court erred in limiting defense counsel’s cross-examination. Though we permit a full cross-examination of witnesses upon subjects mentioned in the examination in chief, we have held numerous times that the scope and extent of such examination are largely discretionary with the trial court. See Bartley and Jones v. State, 210 Ark. 1061, and cases cited therein. The first instance mentioned by appellant refers to several questions asked the witness relative to the expression on appellant’s face when he shot his wife. The witness had already answered several times that she did not observe Nelson’s face when he fired the shot and the court was merely curtailing repetition. This was not an abuse of discretion. See Vaughn v. State, 252 Ark. 260, 478 S.W. 2d 759. While examining this witness, counsel also asked, “Mrs. Spaulding, is the reason you couldn’t see his face, as you sit in the witness chair and you think about it, you know that at the time the shot was fired Bill Nelson had no awareness that the shot was being fired?” The court did not permit the question, stating to counsel that he was “testifying”. As we said in Woodruff Electric Coop. v. Daniel, 251 Ark. 468, 472 S.W. 2d 919, “Even though the cross-examiner has the right to ask leading questions, this does not accord him the right to in effect testify by making statements.”
The second instance mentioned by appellant refers to the cross-examination of Ronnie Bogard, a young man of teen-age, who was present in the room when the shot was fired. On the original cross-examination, Bogard was asked if there were changes in the way Nelson appeared insofar “as the look that he had.” Bogard answered that he had the same look until just before he fired the shot when “he kind of got a mean look on his face, and then did it.” The next question on cross-examination was, “Did he have a wild look in his eye?” Counsel never during the balance of the cross-examination referred to the statement by Bogard relative to the “mean look”. The apparent purpose of the cross-examination of Bogard was to support the contention of insanity, and an extensive examination was conducted of the witness for that purpose.
The last question asked on cross-examination was, “Ronnie, can you describe for the jury what Bill Nelson looked like at the time of this shooting?”, to which the witness replied, “I’d say about two seconds before and right after he had did it, he looked like he went into some kind of a trance, like his mind went blank or something.” Counsel then stated, “No further questions.” On re-direct, when asked to describe the physical features of Nelson, Bogard again mentioned that appellant looked “mean”. On re-cross, several questions were asked about the expressions “mean”, “trance”, and “blank”. The court finally halted this examination, and we certainly find no abuse of discretion. In the first place, it appears that the subject was fully covered and the witness’s answers were only a reiteration of earlier testimony. In the next place, the “mean” expression was used by the witness in his original cross-examination and no further questions asked. Likewise, the “trance” expression was used by the witness in the original cross-examination and no further questions asked. As pointed out in 98 C.J.S. Witnesses, § 429, p. 237:
“As a general rule, recross-examination is not allowable as a matter of right; the question of permitting recross-examination, and the scope and extent thereof, are in the sound discretion of the trial court, whose action will not be disturbed unless an abuse of discretion is shown.”
The next instance mentioned by appellant as to curtailment of cross examination relates to a question asked as follows:
“Q. Mr. Carruth, did he, Mr. Cowan, advise you that it appeared to him that Mr. Nelson did not know that the shot was fired at the time it was fired, and that he was shocked after discovering that Mrs. Nelson had been shot?”
The court sustained an objection, holding that the evidence was hearsay. Counsel for appellant agrees that such testimony was hearsay but contends that it was admissible as part of the res gestae. Cowan was one of the people present when the shooting occurred and Carruth was the first police officer to arrive. This officer questioned the various witnesses to the shooting and this was the basis of the question asked him by counsel. We agree with the State that Cowan’s statement was not a part of the res gestae. For one thing, though it is indefinite as to when Carruth arrived and the statement was made, it is certain, as pointed out by the State, that if such a remark were made, it was not earlier than five to ten minutes after the shooting occurred and probably much later. In Liberty Cash Growers, Inc. v. Clements, 193 Ark. 808, 102 S.W. 2d 836, we held that remarks made by a truck driver in an action to recover damages for negligence were not a part of the res gestae when the remarks were made five minutes after the accident, this court stating that the remarks constituted what the witness said about the act, rather than the act speaking for itself. The statement by Cowan was simply a response to questions from the officer and constituted only a narrative of a past occurrence. Cowan had testified during cross-examination that he had “okayed” a written statement by his wife which included a comment that Nelson had looked shocked that he had shot Mrs. Nelson. Cowan, when asked if he was agreeing that Nelson looked shocked replied, “No, not really. I just don’t really know what he looked like.” However, the questioning of Carruth was not for the purpose of testing Cowan’s credibility, and, in fact, the court mentioned that if counsel subsequently ascertained that Cowan had made statements to Carruth different from his (Cowan’s) testimony, Carruth could be placed back on the stand by appellant for the purpose of showing that fact. At any rate, we hold that this statement was not a part of the res gestae, and was therefore inadmissible as hearsay evidence.
The last contention of improper limitation on cross-examination refers to a question asked Officer Harvey of the Fort Smith Police Department as to whether it was “a matter of common knowledge in the police department that Bill Nelson was undergoing psychiatric care.” Nelson was a former police officer, and of course the other officers were acquainted with him. Harvey answered that he had “heard statements to that effect”, but had no personal knowledge of that fact. He was then asked:
“Q. Let me ask you this. Did anybody ever say to the Chief or Assistant Chief, ‘look, here’s a man who’s under psychiatric care. Is this what we really need on the Police Department?’ ”
An answer to this question would have been inadmissible for more than one reason, and certainly was not proper recross-examination since it did not relate to anything asked on redirect examination.
Finally, it is asserted that the court erred in refusing to permit medical librarians to read from medical records which had been offered into evidence by appellant. These records were offered as a matter of furthering the defense of insanity and appellant desired that the hospital employees read inter alia the dates of several brain concussions suffered by appellant, medication prescribed, final diagnosis, and summary of the hospitalizations. The records were properly offered under the provisions of Ark. Stat. Ann. § 28-928—929 (Repl. 1962), but this fact in itself does not necessarily mean that all the contents of such records were relevant or competent. In Royal Service v. Whitehead Construction Co., 254 Ark. 234, 492 S.W. 2d 423, we stated that though certain business records may be admissible in evidence under the provisions of the statute just mentioned, said statute does not make such evidence either material or relevant. Appellant achieved his purpose in offering these records, for the matters heretofore mentioned, with the permission of the court, were not only fully discussed by Mr. and Mrs. Nelson, parents of appellant, but by both the psychiatrist who testified for the defense, and the psychiatrist who testified for the State. The several concussions and circumstances surrounding were related to the jury in detail, and we cannot say that the mere reading of such records by non-experts would have added anything of value to the evidence. Even if the ruling of the court had been erroneous, no possible prejudice could have resulted.
A reading of the record clearly reflects that the trial court carefully tried this case, rendered the rulings complained of only after studied thought, and conducted the proceedings with thorough competence and impartiality.
Affirmed.
Harvey had originally testified that he had overheard an argument between Mr. and Mrs. Nelson at their former apartment. On re-direct examination, two questions were asked, first, the date that Harvey visited the apartment, and second, if this occurred before Nelson “went into the hospital.” Appellant contends that the reference to “hospital” permitted the question herein under discussion. | [
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Conley Byrd, Justice.
This medical malpractice action was filed by appellant Loree Cavin Williams, on April 6, 1973, in Benton County, as executrix of the Estate of Ralph Hollis Williams on behalf of both the estate of the decedent and the widow and next of kin. It was alleged that the decedent died February 18, 1973. The complaint in so far as here pertinent with respect to appellee C. T. Edmondson alleged:
“The defendant, C. T. Edmondson, M.D., is a resident of Washington County, Arkansas and is a licensed and practicing physician specializing in the field of radiology and said physician practices among other places, in Benton County, Arkansas, on or about the 7th through the 9th days of April, 1971, at which time said defendant did read and interpret an X-ray taken of the chest of plaintiff’s decedent at the Bates Memorial Hospital, Bentonville, Arkansas as further described hereinafter. ”
The allegation with respect to appellee H. W. Ward is as follows:
“The defendant, H. W. Ward, M.D., is a licensed and practicing physician specializing in the field of radiology and practicing his profession in Benton and Washington Counties, among other places, and did at all times hereinafter mentioned, practice his specialty in taking, reading and interpreting X-rays, particularly X-rays of plaintiff’s decedent’s chest made at Bates Memorial Hospital, Bentonville, Benton County, Arkansas, on or about 31st day of March 1970, through the 1st day of April 1970.”
The complaint then alleges that Dr. Ward failed to adhere to that degree of care and skill expected and required of him in reading an X-ray of the chest of the decedent Ralph Hollis Williams made in April 1970. A like allegation was made with respect to a chest X-ray read by Dr. Edmondson on April 7, 1971.
Appellant caused summons to be issued and delivered to the sheriff of Washington County. The summons upon Dr. Ward was promptly served at his home in Washington County. The summons issued for Dr. Edmondson was returned unserved on April 11, 1973, with the notation: “Unable to serve. Subject lives in Benton County, per Deputy Colvard.” On April 19th, the sheriff’s office wrote to appellant’s counsel:
“Dear Mr. Williams:
“We are this date returning to Benton County Clerk’s office Summons in Circuit Court ref C. T. Edmondson, M.D. defendant in above mentioned case.
Dr. Edmondson does not maintain an office in Washington County. He has a residence in Benton County, 3/4 mile west of Little Wheel Grocery, and comes into Springdale on Tuesdays and Thursdays to read x-rays at the Springdale Memorial Hospital.
However, when we tried to reach him this day, we were advised by Dr. Ward that Dr. Edmondson is on vacation for two weeks.
Yours very truly,
By: /s/ Marjorie Roberts Civil Process Office
:mr P.S. The Little Wheel Grocery is on Hwy. 71, north of Springdale. ”
On April 13, 1973, appellant caused another summons to be issued for Dr. Edmondson directed to the sheriff of Benton County which was served on April 16th.
On July 2, 1973, the trial court sustained Dr. Ward’s demurrer to the complaint on the ground that the controlling statute of limitation, Ark. Stat. Ann. § 37-205 (Repl. 1962), had run during decedent’s lifetime. On the same day the trial court sustained Dr. Edmondson’s motion to quash the summons issued on April 6, 1973, to the sheriff of Washington County.
On July 31, 1973, appellant filed an amended complaint essentially repeating the allegations of the original complaint in so far as the individual acts and omissions of the doctors are concerned but added an allegation that the doctors were partners — by answers subsequently filed the latter allegation is admitted. The trial court sustained a demurrer of Dr. Edmondson to any action on behalf of the estate of the decedent but left standing the action for wrongful death on behalf of the widow and next of kin. A demurrer was sustained on behalf of Dr. Ward as to all allegations except those relating to his vicarious liability for the acts or omissions of Dr. Ed-mondson under Lord Campbell’s Act. Appellant elected to stand upon the pleadings and the trial court entered a dismissal of all actions except as to the wrongful death action by the widow and next of kin against Dr. Edmondson and Dr. Ward’s vicarious liability therefor. For reversal appellant raises the issues hereinafter discussed.
POINT I. Appellant here contends that her action filed on April 6, 1973, was properly commenced as against Dr. Ed-mondson and tolled the applicable statute of limitations, Ark. Stat. Ann. § 37-205 (Repl. 1962). That statute provides:
“Hereafter all actions of contract or tort for malpractice, error, mistake, or failure to treat or cure, against physicians, surgeons, dentists, hospitals, and sanitoria, shall be commenced within two (2) years after the cause of action accrues. The date of the accrual of the cause of action shall be date of the wrongful act complained of, and no other time.”
Ark. Stat. Ann. § 27-301 (Repl. 1962), with reference to commencement of actions provides:
“A civil action is commenced by filing in the office of the clerk of the proper court a complaint and causing a summons to he issued thereon, and fdaced in the hands of the sheriff of the proper county or counties. . . .” [Emphasis ours.]
Obviously before Dr. Edmondson can prevail on statute of limitations, he must show that Washington County was not a proper county for the service of the summons. In this connection Ark. Stat. Ann. § 27-330 (Repl. 1962), as to method of service provides that the method of service shall be by personally delivering a copy of the summons to the defendant or by leaving a copy of the summons at the usual place of abode of the defendant with some member of the defendant’s family over 15 years of age. Of course, where a summons is directed to a county other than the defendant’s residence, we have recognized that actual service will relate back to the date of issuance but that unless the summons is issued to the sheriff of a county where it may be served the issuance thereof does not toll the statute of limitation until it is actually served, Sims v. Miller, 151 Ark. 377, 236 S.W. 828 (1922). Furthermore, Ark. Stat. Ann. § 27-309 (Repl. 1962), provides:
“The summons shall be made returnable twenty (20) days after the issuance thereof unless otherwise ordered by the court.”
In J. H. Hamlen & Son v. Allen, 186 Ark. 1104, 57 S.W. 2d 1046 (1933), we held that a summons served after the return date thereof, was properly quashed.
However we do not agree that the action of the circuit court in quashing the original summons issued to Washington County on April 6, 1973, was proper. Dr. Ed-mondson moved to quash the summons, so the burden of proving facts supporting the motion was upon him. Nix v. Dunavant, 249 Ark. 641, 460 S.W. 2d 762 (1970). In other words, it was up to him to show that Washington County was not a proper county to which the summons could be issued in order to commence the action. The record discloses that the return day of the summons was twenty days after the date of issuance, and that Dr. Edmondson regularly came to the Springdale Memorial Hospital on Tuesdays and Thursdays to read X-rays, but when the Washington County sheriff tried to reach Dr. Edmonson there on April 19, Dr. Ward advised him that Dr. Edmondson was on a two-week vacation. There is no information in the record as to the terminal dates of the vacation. Between April 6, 1973, and April 26, 1973, Tuesdays fell on the 10th, 17th and 24th and Thursdays fell on the 12th, 19th and 26th. It was reasonable to be anticipated that Dr. Edmondson could have been served with summons on any of these dates. The return on the summons was dated April 11 but it remained in the hands of the sheriff of Washington County until he sent it to the attorneys for appellants by letter dated April 19. Since the terminal dates of the vacation were not shown, it is only reasonable to assume that the summons could have been served on Dr. Ed-mondson on the 10th, 12th or 17th, if that is important. It is also entirely possible that if the summons had not been returned prematurely, it could have been served on the 24th. The point is, there was nothing to show that it was unreasonable for appellants to believe that the summons could be served on Dr. Edmondson in Washington County between April 6 and April 26, 1973. Furthermore, the sheriff was not told that Dr. Edmondson was on vacation until April 19.
In considering the words in the statute now before us [Ark. Stat. Ann. § 27-301 (Repl. 1962)], in only a slightly different context we said that the term “proper county” (proper court?) used in the statute had been “defined to mean the county of defendant’s residence or where the defendant may be served with process.” Sims v. Miller, 151 Ark. 377, 236 S.W. 828 (1922). There we were determining the “proper county” insofar as filing the complaint in a transitory action was concerned. The General Assembly amended the statute by Act 32 of 1961. Prior thereto, and when Sims was decided, the pertinent part of the statute read: “A civil action is commenced by filing in the office of the proper court a complaint and causing summons to be issued thereon.” The amendment added at the end of this sentence the words “and placed in the hands of the sheriff of the proper county or counties.'''’ (Emphasis ours.) In choosing the words “proper county” it certainly should be presumed that the legislature knew the meaning ascribed by us to these words in considering the very statute they were amending. Brown v. Davis, 226 Ark. 843, 294 S.W. 2d 481 (1956); Lumbermen’s Mut. Cas. Co. v. Moses, 224 Ark. 67, 271 S.W. 2d 780 (1954); Terral v. Terral, 212 Ark. 221, 205 S.W. 2d 198 (1947); Texarkana Special School Dist. v. Consolidated School Dist. No. 2, 185 Ark. 213, 46 S.W. 2d 631 (1932). In addition, that body’s insertion of .the plural as an alternate clearly shows that it was cognizant of the fact that under that definition there could be more than one “proper county. ” This being so, it is clear in an action that is not transitory, but “local,” as this one is, the “proper county” is either the county of defendant’s residence or the county where he may be served with process.
In Roach v. Henry, 186 Ark. 884, 56 S.W. 2d 577 (1933), Roach had filed a motion to quash a garnishment issued in an action against him. He contended that the garnishment was void because no suit had actually been commenced at the time it was issued. He alleged that the sheriff of Chicot County (in which the action had been filed) had failed to find him in the county and had served the summons on a man who was in charge of some equipment for Roach, that the plaintiff’s attorney had subsequently caused other process, i.e., a warning order to be issued and that Roach was not a resident of Chicot County, but of the city of Memphis. The respondent stated, under the statements of the complaint and of plaintiff’s counsel, which were not denied, that Roach was engaged in levee work in Chicot County and that before and since filing of the suit, Roach had been in the county from time to time. We held that the filing of the complaint and issuing of summons constituted commencement of the suit and rejected the argument that the garnishment simultaneously issued was void because the defendant had not been served. We also rejected the argument that the subsequent issuance of a garnishment constituted abandonment of the effort to get personal service, saying that one might be a resident of a county and still evade personal service.
Although the record is rather sparse, it is clear that Dr. Edmondson was served with process on April 16, three days before the date of the Washington County sheriff’s letter returning the first summons. It is difficult to say whether the information given the sheriff about the vacation was untrue, or the vacation had either ended or not commenced on April 16. In any event, there was an appropriate basis for appellants to believe, in good faith, that Dr. Edmondson could have been served in Washington County within 20 days of the issuance of the first summons, and he probably could have, had the sheriff not first concluded that the summons should have been served in Benton County. Certainly the second summons was not an abandonment of efforts to obtain service. The acts or omissions of the sheriff to whom the writ is directed should and do have no effect in determining whether the action has been commenced. King v. Circuit Court of Conway County, 239 Ark. 653, 391 S.W. 2d 24 (1965); Fitzsimmons v. Rauch, 197 Okla. 426, 172 P. 2d 633 (1946).
In St. Louis, A. & T. Ry. Co. v. Shelton, 57 Ark. 459, 21 S.W. 876 (1893), it was held that even though the service of a summons issued upon filing of a complaint within the prescribed period of limitation was fatally defective and a second summons was issued after the expiration of the period of limitation, the action was not barred because it was commenced when the first summons was issued. This case was cited with approval in King v. Circuit Court of Conway County, supra; Bridgman v. Drilling, 218 Ark. 772, 238 S.W. 2d 645 (1951). It is the issuance of a summons and placing it in the hands of the sheriff of the proper county, not its service, that determines the time of commencement of an action. King v. Circuit Court of Conway County, supra.
The tolling of the statute by the commencement of the action is, of course, not perpetual, but conditional. The extent to which the statute is tolled seems to depend upon the good faith of the plaintiff in commencement of the action and his diligence in thereafter obtaining service of process, whether in the same county or another. Emanuel v. Richards, 426 S.W. 2d 716 (Mo. App., 1968); Korby v. Sosnowski, 339 Mich. 705, 64 N.W. 2d 683 (1954); Myers v. Warren, 275 Mass. 531, 176 N.E. 600 (1931); Comen v. Miller, 41 F. 2d 292 (M. D. Pa. 1930).
Finally appellant asserts that the amendment to the complaint alleging a partnership between Dr. Edmondson and Dr. Ward relates back to the filing of the original complaint. Of course, if it does, the complaint would be good as against Dr. Ward’s demurrer as to his vicarious liability for the acts of Dr. Edmondson on April 7, 1971.
The general rule seems to be that although made after the expiration of the period of limitations, an amendment to a complaint changing the allegation as to the capacity in which a defendant is sued is permissible, and unless a new cause of action is stated the amendment relates back to the filing of the original complaint. See Annotation 8 ALR 2d 153, § 76. We have permitted such amendments to be made as to both plaintiffs and defendants, Foster-Holcomb Investment Company v. Little Rock Publishing Company, 151 Ark. 449, 236 S.W. 597 (1922). The only authority that we have been able to find involving an amendment alleging that the parties already sued were partners is TAORMINA Corporation v. Escobedo, 254 F. 2d 171 (5th Cir. 1958). There the court permitted the amendment to relate back to the date of the filing of the original complaint as to the individual partners before the court upon the original complaint but dismissed as to any of the partners brought in after the statute of limitations had run.
The law with reference to amendment of pleadings was stated in Bridgman v. Drilling, 218 Ark. 772, 238 S.W. 2d 645 (1951), in this language:
“Our cases hold that where there is an amendment to a complaint stating a new cause of action or bringing in new parties interested in the controversy, the statute of limitations runs to the date of the amendment and operates as a bar when the statutory period of limitation has already expired. In other words, if the plaintiff amends his complaint after commencement of the suit by introducing a new cause of action, the statute continues to run until the filing of the amendment which does not relate back to the commencement of the suit. Wood v. Wood, 59 Ark. 441, 27 S.W. 641, 28 L.R.A. 157; Buck v. Davis, 64 Ark. 345, 42 S.W. 534; Love v. Couch, 181 Ark. 994, 28 S.W. 2d 1067. If, however, the amendment to the complaint does not set forth a new cause of action, but is merely an expansion or amplification of the cause of action already stated, then the amendment relates back and takes effect as of the date of the commencement of the original action. Little Rock Traction & Electric Co. v. Miller, 80 Ark. 245, 96 S.W. 993; Western Coal & Mining Co. v. Corkville, 96 Ark. 387, 131 S.W. 963.
In the case of Paris Purity Coal Co. v. Pendergrass, 193 Ark. 1031, 104 S.W. 2d 455, we approved the rule stated in 37 C.J. 1068 as follows: ‘An amendment of a declaration, petition or complaint which sets up no new cause of action or claim, and makes no new demand relates back to the commencement of the action, and the running of the statute against the claim so pleaded is arrested at that point. This is in substance the language of the statute in some jurisdictions, and the rule applies, although the limitation is by contract and not by statute; and courts have been liberal in allowing amendments expressly to save a case from the statute of limitations when the cause of action is not totally changed.’ See, also, 54 C.JS., Limitations of Actions, § 279a; 34 Am. Jur., Limitation of Actions, § 260.”
While parts of the original complaint would indicate that Doctors Ward and Edmondson were intended to be sued individually, other parts of the 10 page complaint allege as follows:
“6. By way of an arrangement, either written or oral, between the defendant doctors and the Bates Memorial Hospital and/or its staff physicians, said radiologists did agree and bind themselves to furnish treatment and to conduct examinations and interpretations of X-rays of patients in said hospital (inpatient and out-patient) and did on the dates aforesaid serve as the physicians of Ralph Hollis Williams, deceased for the purpose of taking, developing, reading, studying and interpreting and reporting relative to his chest X-rays, and the said defendant doctors did hold themselves out to possess that degree of skill possessed by other radiology specialists and did, in undertaking to handle the radiological portion of decedent’s medical care, bind themselves to adhere to that degree of care and skill of a specialist in radiology similarly situated, and did agree to use their best judgment in the administration of said care and skill.
“7. (c). Both defendant doctors, Dr. Ward and Dr. Edmondson, failed to abide by recognized and established procedures, check lists and protocols relative to their handling of the radiological aspects of plaintiff’s decedent’s care, and they did fail to comply with the rules, regulations and practices as set out by Specialty Boards in the field of radiology by the Joint Commission on Accreditation of Hospitals and said Commission’s rules relative to hospital staff, and they did fail to properly and skillfully furnish to plaintiff’s decedent medical care and treatment expected and required of them and reasonably necessary to preserve and protect his health, life and chances of survival at the times heretofore mentioned, and they did further, by their failure to detect radiological evidence of plaintiff’s decedent’s true condition, cause said evidence of the cancerous condition to be concealed from plaintiff’s decedent and his treating physician so that said condition was not discovered until approximately May, 1972; at which time the disease was too widespread to arrest or eradicate.
“9. As a result of the negligence of these defendants as aforesaid, during the lifetime of plaintiff’s decedent as result of the undetected spread of disease in his body, he did suffer extreme pain, ...”
Thus as against a demurrer, we conclude that the trial court erred in ruling that the statute of limitations had run as to Dr. Ward’s vicarious liability for the acts of Dr. Edmond-son.
POINT II. Appellant here contends that since neither the acts or omissions alleged to constitute malpractice nor the injury to plaintiff’s decedent was discovered nor reasonably discoverable by plaintiff’s decedent until May 1972, the statute of limitations did not begin to run until time of discovery. We find that we so construed our statute of limitation in malpractice cases prior to Act 135 of 1935. See Burton v. Tribble, 189 Ark. 58, 70 S.W. 2d 503 (1935). Since the enactment of Acts 1935, No. 135, following Burton v. Tribble, supra, we have construed our statute as beginning to run from the date of the wrongful act irrespective of the knowledge or discovery thereof by the patient, Steel v. Gann, 197 Ark. 480, 123 S.W. 2d 520 (1939). For cases from other jurisdictions reaching the same results, see the annotation in 80 ALR 2d 368, 379.
Appellant alleges that the negligence of the doctors effectively concealed the disease from her deceased husband until other physicians discovered the disorder thereby delaying the commencement of the running of the statute of limitations until the discovery. Appellant also suggests that the negligent interpretation of X-ray films is a continuing tort sufficient to prevent the statute of limitations from beginning to run until appellees had effectively discharged their duty. We do not find sufficient allegations to support the contention that appellees concealed their tort. It is pointed out in the annotation 80 ALR 2d 368, 406 that knowledge of the wrong done on the part of the physician is a necessary prerequisite to a tolling of the statute. We so held in Crossett Health Center v. Croswell, 221 Ark. 874, 256 S.W. 2d 548 (1953).
The continuing tort theory best addresses itself to the General Assembly who has the responsibility for establishing the public policy on that issue. Needless to say the only thing alleged is that the appellees were negligent in reading the X-rays and that they were thereafter filed away. Thus by the allegations, the wrong, if any, was completed at the time of the reading.
Appellant also contends that appellees are estopped to plead the statute of limitations because of the fiduciary relationship between the doctor and the patient. Since the nature of the relationship between a physician and his patient was well known to the Legislature at the time of the enactment of the two year statute of limitations, it would appear that the acceptance of appellant’s contention would amount to an outright repeal of the statute of limitations. This we do not propose to do.
POINT III. Appellant here for the first time contends the statute of limitations applicable to malpractice actions is unconstitutional. We do not reach a constitutional issue raised for the first time on appeal. Even if we did reach the issue it would appear that we would hold contrary to appellant’s position. See Carter v. Hartenstein, 248 Ark. 1172, 455 S.W. 2d 918 (1970), where we upheld the constitutional validity of a four year statute of limitations applicable to deficiencies in the design, planning and supervision of construction of improvements to real estate.
POINT IV. Appellees suggest that the order of the trial court is not an appealable decree. In so doing they rely upon Independent Insurance Consultants Inc. v. First State Bank of Springdale, 253 Ark. 779, 489 S.W. 2d 757 (1973). We do not agree with appellees that the order is not appealable because the practical effect of the order was to dismiss all claims of the estate of the decedent from the action. In Flanagan v. Drainage Dist. No. 17, 176 Ark. 31, 2 S.W. 2d 70 (1928), we held that an order was final and appealable where a distinct and severed branch of the case is finally determined, although the suit is not ended.
In Matthews v. Travelers Indem. Ins. Co., 245 Ark. 247, 432 S.W. 2d 485 (1968), we recognized that the malpractice action asserted on behalf of the decedent was a separate cause of action from the wrongful death action asserted on behalf of the spouse and heirs.
Reversed and remanded. | [
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CONLEY Eyrd, Justice.
Appellant Loamma Holcomb, age 14, was struck by an automobile driven by appellee Patsy Gilbraith while crossing Highway 59. The jury found the issues in favor of appellee and appellant through her father brings this appeal. For reversal appellant contends that the trial court erred in giving AMI 614 (on sudden emergency); in refusing AMI 605 (On duty to anticipate behavior of children); and in modifying Ark. Stat. Ann. § 75-628(d) (Repl. 1957).
The proof shows that all parties were acquainted with each other and that appellee knew that appellant was in the habit of crossing the highway from her home to go to her grandparents’ home on the other side of the highway. All witnesses generally agree that the point where appellant was crossing the highway is blocked from the view of a north bound motorist until the motorist gets within 400 or 500 feet of the place involved.
Appellant testified that before going across the road she had looked both to the south and the north and that she did not see any vehicles. She says that she was just angling across the road.
Appellee testified that she was driving a 1970 Model Ford LTD. The car was in good shape. She had had the front end aligned and the wheels balanced only two days before. Appellee testified that when she first observed appellant, the latter was walking on the right-hand shoulder of the road. When appellee was within 100 feet of appellant, appellant made a sudden turn onto the highway. Appellee then applied her brakes, blew her horn and pulled to the left. She testified that at first she thought she missed appellant, but she then realized that the appellant was hit by the right front fender. Appellee says that when she first saw appellant she took her foot off the accelerator and pulled to the left. On cross-examination appellee described appellant as just walking along the highway with her head down — appellant didn’t seem to be very alert.
The skidding distance of appellee’s car varied with the witnesses. One witness, who stepped off the distance estimated it to be 150 to 160 feet. Appellant’s father placed the skid marks at 230 feet.
POINT 1. We find no merit in appellant’s contention that the instruction on sudden emergency should not have been given. There was proof in the record to the effect that appellant while walking along the road suddenly turned into the path of appellee’s automobile. See Johnson v. Nelson, 242 Ark. 10, 411 S.W. 2d 661 (1967).
POINT II. The trial court refused to give appellant’s requested instruction No. 1 (AMI 605) which reads as follows:
“A person who knows, or reasonably should know that a child may be affected by his failure to act, is required to anticipate the ordinary behavior of children and use care commensurate with any danger reasonably to be anticipated under the circumstances. A failure to use this degree of care is negligence.”
To sustain the action of the trial court, appellee argues:
“In determing the standard of care to which a minor is held, this Court has for many years made reference to ‘intelligence,’ ‘understanding,’ ‘experience,’ ‘discretion,’ ‘capability,’ and ‘capacity’ as well as ‘age.’ See Comment, AMI 304. It is, of course, well known that some young people mature faster than others. Some are more intelligent, quick witted, comprehending and observant, while others tend to remain awkward and inattentive for a longer than usual period. It is consideration of these things that should determine whether or not AMI 605 should be given in case of injury to a minor. ...”
In discussing whether a child should be held to the standard of care of an adult in negligence cases, the annotator in 77 A.L.R. 2d at page 932 §7 states the matter in this language:
“Whether the question of a child’s contributory negligence is regarded as one of capacity, standard of care or compliance with that standard, the courts are in general agreement that normally, if not always, a question of fact for the jury is presented rather than one of law for the court. ...”
This Court is in accord with the general view, see Brotherton v. Walden, 204 Ark. 92, 161 S.W. 2d 391 (1942) and Garrison v. St. Louis, I.M. & S. Ry Co., 92 Ark. 437, 123 S.W. 657 (1909). We need not here decide at what age the issue becomes one of law for we are dealing with a girl between the ages of 14 and 15 who was injured on the day she graduated from junior high school. It is also true as the appellee argues that some children develop faster than others, but we know of no reason why jurors would be any less capable in determining those facts than a court. It follows that we conclude that the trial court erred in refusing to give AMI 605 as requested by appellant.
POINT III. The statutory duty of a pedestrian crossing at other than crosswalks is set out in Ark. Stat. Ann. §75-628(a) and (d) in this language:
“(a) Every pedestrian crossing a roadway at any point other than within a marked crosswalk, or within an unmarked crosswalk at an intersection shall yield the right of way to all vehicles upon the roadway. . . . (d) Notwithstanding the provisions of this section, every driver of a vehicle shall exercise due care to avoid colliding with any pedestrian upon any roadway and shall give warning by sounding the horn 'when necessary, and shall exercise proper precaution upon observing any child, or any confused or incapacitated person upon a roadway.”
The trial court in instructing the jury as to the above statute removed the words “child, or any confused or incapacitated person” and in its place put “person.”
Appellee contends that appellant was not prejudiced by the court’s modification but since we are reversing for the court’s error in refusing AMI 605 supra, we point out that under the circumstances of this case the statutory language should have been used without modification.
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Frank Holt, Justice.
A jury found appellants guilty of involuntary manslaughter. Ark. Stat. Ann. § 41-2209 (Repl. 1964). The punishment of each was assessed at a one year suspended sentence in the State Department of Correction and fines of $100. The sole issue upon appeal is the sufficiency of the evidence to sustain the verdicts. Appellants recognize that in determining the sufficiency of the evidence, upon appellate review, it is only necessary to ascertain that evidence which is most favorable to the appellee and if any substantial evidence exists, then we must affirm. Williams v. State, 257 Ark. 8, 513 S.W. 2d 793 (1974).
The appellants, Robert L. Flippo, Jr., and Robert M. Flippo, are respectively father and son. Late in the afternoon of the tragic occurrence, the father drove his son, Bobby, and the son’s teenage friend, Terry Dunlap, to a clover field several miles from their home for the purpose of discovering deer tracks in preparation for the forthcoming hunting season. Among other weapons, Bobby, a college student, took a new 30.06 rifle with him. Mr. Flippo stopped the truck in the field and the two youths got out. Bobby took his rifle with him thinking he might see a deer. After walking about 150 yards, Bobby raised the rifle, which was equipped with a telescopic sight, and fired once thinking he saw a deer. The weather conditions impaired visibility since it was overcast and approaching nightfall.
About a minute later, Bobby returned to the truck and expressed his belief that he had killed a deer which he heard “bay.” Terry, however, said he heard three small caliber rifle shots, which were later determined to be distress signals. After approximately ten minutes, Bobby convinced his father to return to the scene and search for the deer. Bobby and Terry found Roy Ralph Sharp approximately 140 yards from where Bobby fired his rifle in the direction of the victim. There was evidence that the victim was partially obscured by a tree with low branches from which the bullet ricocheted. The victim was conscious and asking for help. He was a “big man,” weighing 225 pounds, and he left leg was “almost off at the hip.” He had “drug” himself approximately twenty paces out of the woods. Bobby administered no first aid although there was evidence that he had won a “National 4-H Safetyman” award based upon his knowledge of “all aspects of safety.” He and Terry ran to a nearby residence, which happened to be the residence of the victim’s 72 year old father. There they told Mr. Sharp that they had found a person who was wounded. The boys returned to the Flippo truck where they told Mr. Flippo about the accident. Bobby then told his father than Mr. Sharp was going to follow them back to the scene of the accident. When they arrived near the scene, Mr. Flippo and Bobby told Mr. Sharp that they were going to call an ambulance. Bobby gave Mr. Sharp directions as to the location of the victim. There was no offer of assistance to Mr. Sharp in removing the victim in one of the trucks for medical aid. After they had left, Mr. Sharp found the victim and then learned that he was his son. He asked his father to get assistance. Mr. Sharp told him “|S]on, some folks have gone to call an ambulance. You lay right still and it will be here in just a few minutes.”
The Flippos left and drove to the Flippo home which was twelve or fourteen miles away. Mr. Flippo, who was told by Terry that the victim’s leg was nearly severed, drove past numerous houses, some of which had telephones, and a cafe, which was only 2.3 miles from the wounded man. The cafe was open and an outside public telephone was plainly visible. Mr. Flippo stopped once at a residence to use a phone at Bobby’s suggestion and when the motor almost stopped, they continued on to the Flippo residence where they were certain there would not be a party line. “[T]here was conversation about removing the rifle from the truck so nobody would know we had the rifle and was hunting out of season. ” At Mr. Flippo’s direction, after reaching the, residence, Bobby and Terry switched the high powered rifle and another rifle from the truck to a “shack” for a shotgun, which was placed on the gun rack in the truck. Then, Mr. Flippo called an ambulance which met him approximately 25 minutes later at the cafe, which he had passed en route to his residence. While Mr. Flippo waited at the restaurant for the ambulance, Terry and Bobby returned in the Flippo truck to the scene where they assisted Mr. Sharp in placing his son in the Sharp truck. A short distance down the road, they met the ambulance to which the victim was transferred, it appears Roy Sharp died either shortly before or after he was placed in the ambulance.
After giving up on the Flippos, Mr. Sharp left his son in the field and found someone at a nearby residence, who then had a neighbor call an ambulance. Mr. Sharp was only away from his son about four minutes. He further testified that from the time he found his son and Bobby and Terry returned, it was about forty minutes to an hour and fifteen minutes.
A pathologist testified that the victim bled to death, and it is possible that the victim “could have been saved” if he had been hospitalized while still conscious. He testified there were other things that could have possibly saved his life: i.e., “the quicker you get a person in the better their chances of living;” “if a shirt or anything had been put around the body, the thigh, above that point that would have stopped the bleeding.” It was his opinion “[T]hat had proper treatment been initiated immediately at the site, he could have been saved.”
Ark. Stat. Ann. § 41-2209 (Repl. 1964), which defines involuntary manslaughter, reads:
If the killing be in the commission of an unlawful act, without malice,, and without the means calculated to produce death, or in the prosecution of a lawful act, done without due caution and circumspection, it shall be manslaughter.
In State v. Green, 38 Wn. 2d 240, 229 P. 2d 318 (1951), the court affirmed a manslaughter conviction where a hunter fired at what he thought was a bear. There the shooter was not sure of his target. The court held that the prosecution made a prima facie case of criminal responsibility from which the jury could find the appellant guilty. See also Johnson v. Commonwealth, 308 Ky. 709, 215 S.W. 2d 838 (1948). In the case at bar, there is substantial evidence, when viewed most favorably to the appellee, from which the jury could find that Bobby, who was hunting out of season; was criminally negligent by acting without due caution and circumspection when he fired at an object he mistakely believed to be a deer and then failed, as charged, to discharge his duty, as hereinafter discussed, to render aid.
A mor$ difficult question is presented with respect to Mr. Flippo. He, as a parent, cannot be deemed an accessory after the fact in the circumstances here. Ark. Stat. Ann. § 41-121 (Repl. 1964). The cases cited by appellee that appellant was an active participant in the tragic shooting are distinguishable. Those cases involve the owner of a car or truck who allows another to knowingly drive in a culpably negligent manner under the owner’s direction and control. In this case, Bobby, a college student who is knowledgeable in gun safety, cannot be said to have been within his father’s control. Neither did Mr. Flippo acquiesce in the culpable manner in which Bobby fired. Bobby was out of and away from the truck.
However, the state alleged and presented evidence to the jury that Mr. Flippo and his son had a duty to render aid to the wounded man, upon disovering him, and failed to do so causing death. “For criminal liability to be based upon a failure to act it must be found that there was a duty to act - a legal duty and not simply a moral duty.” Lefave & Scott, Criminal Law 183 (1972). If the omission to act was intentional, but without the intention or expectation of fatality, the crime would be involuntary manslaughter because of criminal negligence. Perkins on Criminal Law 603 (2d Ed. 1969). In Janes v. United States, 308 F. 2d 307 (1962), the court said:
There are at least four situations in which the failure to act may constitute breach of legal duty. One can be held criminally liable: first, where a statute imposes a duty to care for another; second, where one stands in a certain status relationship to another; third, where one has assumed a contractual duty to care for another; and fourth, where one has voluntarily assumed the care of another and so secluded the hel/dess person as to prevent others from rendering aid. (Emphasis added.)
See also 40 Am. Jur. 2d, Homicide § 90, and King v. Commonwealth, 285 Ky. 654, 148 S.W. 2d 1044 (1941). The case at bar presents a classic fact situation as to the latter situation in Jones v. K.S.. supra. Mr. Flippo assured the victim’s elderly father that he would call for an ambulance. The father kept vigil and delayed seeking assistance in the belief assistance would be procured promptly by appellants. In the meantime the victim, known by the appellants to be seriously wounded, was bleeding to death, asking his father not to leave him after being assured assistance was forthcoming. During this time, Mr. Flippo drove twelve to fourteen miles to reach his residence although phones were in the vicinity of the shooting. A public phone, which the appellants passed, was 2.3 miles from the scene of the tragedy. Mr. Flippo was told, that the victim’s leg was “nearly blown off.” Upon reaching his home he instructed the youths to place the rifles in a “shack” and substitute a shotgun and then used his phone to call an ambulance. According to Mr. Sharp, after waiting in vain for prompt assistance, within four minutes he was able to have someone at a nearby residence summon aid. There was medical evidence that if help had arrived sooner or if aid had been administered at the site by appellants, it was probable that the victim would have survived. The jury could infer that Mr. Flippo’s delay caused the helpless victim to be secluded in the field awaiting the promised aid and prevented or hindered others from rending timely aid. When we view the evidence most favorable to the appellee, as we must do on appeal, there is substantial evidence from which a jury could find appellants criminally negligent.
Affirmed.
• Brown and Fooleman, JJ., dissent as to the affirmance w'ith respect to Robert L. Flippo, Jr. | [
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PER CURIAM.
Kevin Douglas Casey, by his attorney, has IAM. motion for rule on the clerk.
His attorney, Joe Kelly Hardin, admits in his motion that the record was tendered late due to a mistake on his part.
We find an error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See In re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
The motion for rule on the clerk is, therefore, granted. A copy of this opinion will be forwarded to the Committee on Professional Conduct. | [
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George Rose Smith, Justice.
The appellants brought these two suits, consolidated below, to enjoin the Faulkner County Collector from collecting real estate taxes attributable to increases in assessed valuations that were assertedly made without notice to the complaining landowners. The trial judge, finding that “the receipt of notice makes no difference,” dismissed the complaints for want of equity.
Both cases involve a tract-by-tract reassessment that was undertaken in 1972. That procedure was discussed in detail in Dierks Forests v. Shell, 240 Ark. 966, 403 S.W. 2d 83 (1966), where we pointed out that notice to the property owner and an opportunity to be heard are constitutionally essential to such a proceeding. The statute requires the assessor to give that notice and to inform the landowner of his right to apply to the equalization board for a review of the increased assessment. Ark. Stat. Ann. § 84-437 (Repl. 1960).
We first consider the Prather appeal, for there is no substantial dispute about the facts in that case. After the reassessment had been completed in July or August of 1972, the county clerk assumed the responsibility of sending out the required notices to landowners whose assessments had been increased. Mrs. Prather was living in Little Rock and her co-owner in Arkadelphia, but the county clerk was unable even by diligent efforts to ascertain either address. Consequently the notice, although prepared, was never mailed and was still in the county clerk’s files when the case was tried. Thus it is undisputed that the required statutory notice of the increase in the Prather assessment was not given.
The appellee argues, however, that no notice was necessary, because the landowners had an adequate opportunity to apply for a judicial review of the assessment when they first learned of the increase almost a year later, in August of 1973. Here counsel rely upon that provision of the statute which permits a landowner to appeal to the county court without having first exhausted his remedy before the equalization board in all cases “where the petitioner shall have had no opportunity to appear before said board.” Section 84-708. Counsel contend that no matter when these landowners learned of the increase — even a year later — the ten-day period for an appeal to the county court then began to run. Section 84-718.
That contention is unsound. Section 84-437, supra, perhaps goes beyond the minimum constitutional standard by requiring the assessor not only to give the landowner notice of the increase but also to inform him of his right to apply to the equalization board for a review. The appellee’s argument would effectively nullify the protection which the legislature intended for the landowner to have, because he would have to appeal to the county court within ten days after learning of the increase and without having received any information about his remedy. We are not convinced that the legislature, in enacting Section 84-708, meant to destroy the protection that it had carefully provided in Section 84-437. Instead, as we indicated in Jones v. Crouch, 231 Ark. 720, 332 S.W. 2d 238 (1960), the proviso permitting an appeal by a landowner who has had no opportunity to appear before the equalization board is a safeguard against a contingency such as the board’s having so many appeals that they cannot all be heard within the time allowed. We accordingly hold that the chancellor erred in denying relief in the Prather case.
In the second case, involving the Ramada Inn property, a question of fact was presented. Kathy Barrett, a deputy county clerk, testified positively that she remembered the Ramada Inn notice, because it was so high. She testified that the notice was actually prepared and put in the hands of L. J. Merritt, the county clerk, for mailing. Merritt testified that a notice was prepared on every parcel and that he picked up the notices daily and mailed them at the postoffice. Some of the notices were returned, but Kathy Barrett stated that the Ramada Inn notice was not in the return files. On the opposite side, Charlotte Wonn, the manager of the Inn, testified that she alone opened the mail and that no notice of the increased assessment was received.
There being evidence that the notice was mailed, the chancellor was right in holding that proof of its receipt was not essential. Due process requires that notice be given, but it may be by publication or by posting notices in public places. Londoner v. Denver, 210 U.S. 373 (1908); Glidden v. Harrington, 189 U.S. 255 (1903). The chancellor’s conclusion that notice was given in the Ramada Inn case is not clearly against the weight of the evidence.
Affirmed as to the Ramada Inn property, reversed as to the Prather property. | [
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Conley Byrd, Justice.
Early on March 29, 1972, it was discovered that the Baron Camper Company building owned by Black Rock Development Corporation and located just west of Black Rock had been burglarized. Appellant, Gerald Holmes, and Ernest Kisling, were arrested that same day and on March 31, 1972, entered pleas of guilty to burglary and grand larceny. As a result of that plea appellant received a sentence of 21 years with 14 years thereof suspended. On May 15, 1974, Holmes’ conviction was vacated and set aside by the United States District Court for the Eastern District of Arkansas with the requirement that appellant be put to trial not later than the first day of the next term of the Circuit Court of Lawrence County which was June 17, 1974. On June 17, 1974, appellant was again tried and the jury found him guilty of burglary and grand larceny and fixed his punishment at 8 years for each count. The trial court after considering his pre-arrest record and the report filed by the county probation officer directed that the sentences should run consecutively. For reversal appellant raises the issues hereinafter discussed.
POINT I. The record shows that the burglary occurred on a wet rainy night. There were two sets of footprints leading from the door of the camper plant to a place where an automobile, which had different types of tread on the two front tires, had been parked. Darvin Stow, a deputy sheriff, determined that appellant and one Ernest Kisling had recently made applications and had given as their address, room 25, Skyway Courts, Pocahontas, Arkansas. Upon arriving at the Skyway Courts, Deputy Stow found an automobile with front tires matching the tracks he had previously found in the vicinity. He also saw clay mud, comparable to the area where the car had been parked, inside the car and footprints leading from the car up into room 25. After obtaining a search warrant, a search of room 25 produced the tools and equipment that had been taken in the burglary. In the search they also found a pair of wet brown shoes with mud around the soles and on the wedge of the heels and a pair of dingo boots that matched the footprints leading from the burglarized building to the parked automobile.
Of course, this evidence alone was sufficient to sustain appellant’s conviction. In addition, however, it was shown that appellant had stated to the officers that he would go before the judge and plead guilty. He also stated that he did commit the crime and was caught redhanded.
POINT II. Appellant now contends that his statement, that he was caught redhanded and would plead guilty when he went before the judge, should have been suppressed. We find no merit in this contention. The record made at the “Denno hearing” shows that he signed a waiver of rights form after being given the Miranda warnings and from the totality of the evidence given at the “Denno hearing”, we agree with the trial court that appellant’s statement was voluntary.
POINT III. We find no merit in appellant’s contention that officer Stow had no probable cause to go before the municipal judge to obtain a search warrant. The record shows that he explained to the municipal judge in affidavit form the information he found at the site of burglary and at room 25, Skyway Courts.
POINT IV. Appellant contends that the trial court erred in permitting the prosecution to call Ernest Kisling as an adverse witness and then impeach his credibility by showing prior convictions. We find no merit in this contention since appellant’s defense was an alibi and since both he and Kisl-ing had originally pled guilty, the prosecution could certainly call Kisling to show the absurdity of the alleged alibi defense.
POINT V. Appellant contends that the trial court erred in permitting witness Callahan, general manager of Baron Camper, to be recalled to the stand. The record shows that the prosecution attempted to show by witness Callahan that either Kisling or appellant had made some incriminating statements in front of Callahan on the day of the arrest. In view of Ark. Stat. Ann. § 28-710 (Repl. 1962), which permits the recall of a witness with leave of the court, and the fact that the trial court sustained objections to all the testimony offered, we can find no merit in appellant’s contention.
POINT VI. Neither do we find any merit in appellant’s contention that the trial court erred in permitting the officers to describe the similarity between the front tires on appellant’s vehicle and the tracks made near the scene of the burglary. Furthermore, we see no error in the trial court’s permitting the witness to testify that the metal filings and sawdust found in appellant’s car appeared to be similar to that found on the tools and equipment and in the plant of the Baron Camper Company.
POINT VII. Less than 30 days before the trial appellant changed his plea of not guilty to a plea of not guilty by reason of insanity and moved that he be committed to the State Hospital for a period of 30 days. This would have run appellant’s trial beyond the date set forth in the order of the Federal District Court, requiring his discharge if he was not tried by a certain date. Furthermore, after the trial, the trial court did commit appellant to the State Hospital for 30 days before sentencing him and the State Hospital found that appellant was without psychosis. Consequently, we can find no error in the trial court in refusing to commit him beforehand, but should somehow it be considered as error, then the error obviously could not be prejudicial.
POINT VIII. Since appellant received a concurrent sentence of 21 years on both charges of burglary and grand larceny when he pled guilty with 14 years thereof suspended, he now contends that the consecutive 8 years sentences assessed by the trial court amount to excessive, cruel and unusual punishment and that such sentence is not permissible under North Carolina v. Pearce, 395 U.S. 711, 89 S. Ct. 2072, 23 L. Ed. 2d 656 (1969). The allegation that, the sentences are excessive, cruel and unusual has no merit. See Hooper & Westlin v. State, 257 Ark. 103, 514 S.W. 2d 394 (1974). Neither do we'find anything in North Carolina v. Pearce, supra, or in Chaffin v. Styachcombe, 412 U.S. 17, 93 S. Ct. 1977, 36 L. Ed. 2d 714 (1973), that would prevent the trial court from running the two sentences consecutively. The record shows that the trial court took into consideration a pre-sentencing report and the defendant’s arrest record. It takes two pages of the record to list appellant’s arrest record from September 23, 1960 through March 29, 1972. The probation report shows that following appellant’s original plea of guilty and prior to the district court’s order, appellant at one time escaped from prison. This alone would have been sufficient to revoke the 14 years suspended in the first trial. While at the prison he had a fight with an inmate, was disrespectful to the officers and was described by the classification officer at Cummins Prison Farm as a nuisance. After the return to the jail in Walnut Ridge, the officers had to separate him from a fight with Ernest Kisling, that he initiated, and in doing so, appellant bit one of the officers. He also invited the officer to fight with him and continually threatened them with the Federal Judge. Furthermore, the Federal District Judge in entering his order recognized that appellant might receive a longer sentence upon a retrial and in effect warned him of that risk. In light of this record the trial court obviously had other and valid reasons for imposing a consecutive sentence on appellant and consequently we cannot say that the trial court did so from a spirit of vindictiveness or to discourage meritless post-conviction appeals.
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Frank Holt, Justice.
Appellants James DeVazier and his thirteen year old daughter, Debra, brought this action to recover damages for personal injuries suffered by Debra as a result of a large stack of sheetrock falling upon her legs. The father sought “out of pocket” expenses and Debra sought damages for pain, suffering and permanent injury. The jury found each appellee and appellant Debra 25% responsible for the alleged injuries. The jury awarded Debra’s father S3,200 for the expenses he had incurred and no damages to Debra. The trial court’s denial of appellants’ motion for a new trial “solely on the issue of damages sustained by her [Debra] as a result of the negligent injury which the jury has found that she has sustained by reasons of the” negligence of the appellees is the basis for this appeal.
The relief which appellants seek is not permissible. We have consistently refused to affirm a judgment on the issue of liability and allow a partial new trial or one limited only to the issue of damages. Clark v. Ark. Democrat Co., 242 Ark. 497, 413 S.W.2d 629 (1967); Manzo v. Boulet, 220 Ark. 106, 246 S.W.2d 126 (1952); and Krummen Motor Bus & Taxi Co. v. Mechanics’ Lbr. Co., 175 Ark. 750, 300 S.W. 389 (1927). See also 58 Am. Jur. 2d, New Trial, § 27. The rationale is that a verdict, the foundation of the judgment at law, is an entity which cannot be divided by the trial court. Therefore, the trial court was correct in denying appellants’ motion for a new trial.
Although we deem it unnecessary to discuss appellants’ other contentions for reversal, suffice it to say we have examined them and find no merit.
By cross-appeal, F & S Construction Company asserts that the trial court erred in refusing its motion for a directed verdict on the basis that, as a matter of law, Debra was a licensee as to it. We cannot agree. Appellee William Carpenter, a real estate agent since 1967, sells houses. In doing so, he shows a prospective buyer building plans as well as houses which are being built by F & S Construction Company pursuant to a “turn-key” contract between Carpenter and F & S. Carpenter has keys to these pre-sold houses and does not have to secure permission from F & S to show them during construction. Carpenter was showing Debra’s mother, a prospective purchaser, houses at her request. Debra was accompanying them. When they were inspecting one of the houses, which was under construction and pre-sold, a quantity of sheetrock stacked against a wall fell on Debra breaking a leg and ankle. It is F & S’ contention that Debra was on the premises occupied by it merely as a sightseer for her own purposes and F & S Construction Company did not stand to benefit from her presence in the house.
Prosser, Law of Torts, § 61 (4th Ed. 1971), states:
The leading case of Indermaur v. Dames laid down the rule that as to those who enter premises upon business which concerns the occupier, and upon this invitation express or implied, the latter is under affirmative duty to protect them, not only against dangers of which he knows, but also against those which with reasonable care he might discover.
In Restatement (Second) of Torts § 332 (1965), comment b at p. 176, invitation is defined as “. . . . conduct which justifies others in believing that the possessor desires them to enter the land. **** Any words or conduct of the possessor which lead or encourage the visitor to believe that his entry is desired may be sufficient for the invitation.” In the case at bar, F & S allowed Carpenter to have keys to houses which were under construction by it by contract with him and it was his practice to show the houses to customers when requested. Certainly, it must be said the jury could infer that showing the houses to prospective purchasers, as here, resulted in a financial benefit to both Carpenter and F & S. See Alfrey Heading Co. v. Nichols, 139 Ark. 462, 215 S.W. 712 (1919).
Cross-appellant F & S next asserts there was no substantial evidence of negligence by it. Therefore, the court erred in denying its motion for a directed verdict. In determining this issue on appeal, our well settled rule is we consider only that evidence and all reasonable inferences deducible therefrom which are most favorable to the appellee. Baldwin v. Wingfield, 191 Ark. 129, 85 S.W.2d 689 (1935); and National Credit Corp. v. Ritchey, 254 Ark. 139, 491 S.W.2d 811 (1973). In the case at bar 80 panels of sheetrock were delivered to the house five days before the accident occurred. One panel is 4’ x 12’ x Vz” and weighs between 60 and 80 pounds. Approximately 18 of these were stacked vertically in the unfinished bedroom where Debra was injured. An employee and part owner of F & S testified that he had seen the sheetrock three or four times between the delivery date and five days later when the accident occurred. Appellants adduced evidence that the sheetrock was leaning against the wall at a very slight angle or “straight up.” The safe method of storing sheetrock, appellant’s expert witness testified, is to lay it horizontally on the floor. We hold there was substantial evidence, when viewed most favorably to the appellee, to support the jury’s finding that F & S was negligent.
By cross-appeal, Whit Davis Lumber Company asserts for reversal that the trial court erred in refusing to grant its motion for a directed verdict. We agree with this contention. The lumber company, pursuant to an order by F & S, delivered the sheetrock to the house where the injury occurred. It was stacked in a vertical position as was their custom and practice. The sheetrock, as previously indicated, had been stacked in this position for about five days preceding the accident. During this time, a part owner of the construction company had observed and inspected it on three or four separate occasions. It appears that the sheetrock was delivered and stacked as ordered.
Restatement (Second) of Torts § 384 states the following rule:
One who on behalf of the possessor of land erects a structure or creates any other condition on the land is subject to the same liability, and enjoys the same freedom from liability, as though he were the possessor of the land, for physical harm caused to others upon and outside of the land by the dangerous character of the structure or other condition while the work is in his charge. (Emphasis ours.)
Comment g of § 384 points out that liability does not attach for harm caused after control of the condition is terminated. In S. W. Bell Co. v. Travelers Ind., 252 Ark. 400, 479 S.W.2d 232 (1972), we reiterated the general rule:
.... where there is a practical acceptance by a proprietor upon completion of its contractor’s work thereupon the liability of the contractor as to third persons ceases and the responsibility ‘for maintaining or using [it] in its defective condition [is] shifted to the proprietor.’
To the same effect is Chesser v. King, 244 Ark. 1211, 428 S.W.2d 633 (1968). In the circumstances we hold that F & S Construction Company, which ordered the sheetrock, was in complete possession and control of it at the time of the alleged injury inasmuch as there was, to say the least, a “practical acceptance” by the construction company. Therefore, any liability of the lumber company had ceased and had shifted to the construction company.
Affirmed on direct appeal. Affirmed on cross-appeal as to F & S Construction Company and reversed and dismissed on cross-appeal as to Whit Davis Lumber Company.
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LAVENSKI R. SMITH, Justice.
This is a probate case. Appelstice. Amant, as estate devisees, assert that the Garland County probate court erroneously granted fees to the administrator, the estate attorney, and estate accountants. Appellants contend that the Full Faith and Credit Clause of the U.S. Constitution as well as the doctrine of res judicata preclude the award of fees because they had been previously sought and denied in an Oklahoma probate court. They also assert that the trial court erred in granting these fees because they are excessive under the statutes, and because they were untimely sought under the applicable statutes. We find merit in appellant’s Full Faith and Credit argument and, accordingly, reverse.
Facts
In 1984, Tude Mitchell Ray, a lifelong Oklahoma resident, moved to Garland, County, Arkansas, at the age of eighty-one. Over the course of his long life, Mr. Ray amassed a sizeable estate valued in excess of one million dollars despite being illiterate. From 1929 until the early 1940’s he acquired approximately 1,722 acres of land and mineral rights in Oklahoma. Mr. Ray had twelve children. In 1983, nine of his children commenced an action in Oklahoma to have him declared incompetent to handle his affairs. Two of his children, Muriel Amant and Gus Ray, cared for Mr. Ray during the pendency of the incompetency proceedings. They did not live in Oklahoma, but rather in Missouri and Arkansas, respec tively. After coming to Arkansas, Mr. Ray retained the services of Attorney George M. Callahan of Hot Springs to represent him in the incompetency proceedings in Oklahoma. Callahan succeeded, and on May 2, 1986, the Oklahoma Court of Appeals overturned the Oklahoma District Court’s finding of incompetency, and instructed the district court to dismiss the proceeding.
Apparently, in May 1985, Callahan drafted a will for Mr. Ray. The will fisted Callahan and a Mr. Meacham of Clinton, Oklahoma as coexecutors. Mr. Ray’s will left his estate to his sons Gus and Peter, and his daughter Muriel. The will excluded the nine children involved in the incompetency proceedings, provided for $60.00 per month for Pete Ray, granted Muriel Amant mineral rights in what is referred to as the “Section 32 property,” and granted the residue to Gus Ray. However, prior to having Callahan draft his will in 1985, Mr. Ray had already transferred the “Section 32 property” to Muriel, and additional mineral rights to Muriel’s husband Charles in 1984.
On August 22, 1986, Tude Mitchell Ray died testate at the age of eighty-three in Hot Springs. On that same day, Callahan entered the will in probate. At the time of his death, Mr. Ray owned a house and a small amount of personal property in Arkansas. However, the bulk of his 1.3 million dollar estate consisted of real property and real-property interests in Oklahoma, where he had lived almost all of his fife. Thus, the domiciliary probate case was established in Arkansas. Pursuant to the will, the probate court appointed Callahan personal representative for the estate. Callahan charged the estate $125.00 per hour for his services as personal representative. Callahan, although an attorney himself, retained Charles Lincoln as attorney for the estate. Lincoln also charged $125.00 per hour for his services. Additionally, Callahan also retained an accounting firm to handle the finances of the estate. In the course of the probate process, substantial accounting fees were paid to Luebben' and Associates, the accounting firm hired by Callahan.
On September 1, 1987, a mortgagee on some Oklahoma estate property filed an ancillary probate action in Custer County, Oklahoma. At some point, the Oklahoma court substituted Callahan as a co-personal representative in the ancillary action There were also two actions to compel return of the property transferred to Muriel and Gus in 1984, ostensibly to avoid gift taxes that would have to be paid otherwise. On June 15, 1988, LaVone Keeton, one of the excluded children, challenged the will in the district court in Oklahoma, asserting she had a valid will bequeathing the “Section 32 property” to her. The matter was litigated, and Callahan prevailed, bringing this matter to an end in 1989. On November 21, 1988, Charles and Muriel Amant and Gus and Roberta Ray entered into a “Family Settlement Agreement,” to resolve their disputes with Callahan.
The record reflects that even following the execution of the Family Settlement Agreement, the estate continued to languish in the courts. Callahan first submitted an inventory for the estate in 1992. The vast majority of the legal proceedings occurred in Oklahoma where Mr. Ray owned the bulk of his property. During the course of the probate proceedings, and for reasons unstated in the record, Callahan comingled the funds of the domiciliary and ancillary probate proceedings. This apparently led to some consternation on the part of the Oklahoma probate court as to the handling of the estate. The devisees and the executor battled extensively over aspects of the probate, but after approximately seven years, the Oklahoma proceedings wound down.
On July 23, 1993, Callahan filed his Final Account and Petition to close out the ancillary probate in Oklahoma. Callahan included requests for $36,827.87 in personal representative’s fees for “services rendered in the probate proceeding pending in Garland County, Arkansas and the ancillary probate proceeding before this Court”; $8,808.11 for attorney’s fees to the law firm of Lincoln and Lawson; and $11,730.00 for accounting services to Luebben and Associates. On December 16, 1994, Oklahoma Probate Judge Robert W Collier issued his order approving the final account and closing the ancillary probate. In his order, Judge Collier declined to pay all. the fees requested by Callahan’s petition. Instead, Judge Collier ordered that Callahan’s fees for administering the estate had been paid already by his receipt of $70,000 from the probate court of Garland County. Judge Collier transferred $8,808.11 to Arkansas to pay Lincoln and Lawson and awarded Luebben and Associates only $8,000 of its requested fees. No one appealed the order of the Oklahoma probate court.
Interestingly, during the pendency of the Oklahoma proceeding, Callahan filed a “Petition for Allowance and Payment of Fees to Attorneys and Accountants for the Estate” on March 29, 1994, seeking many of the same fees previously sought in Oklahoma. After much litigation, the Garland County Probate Court granted Callahans petition on September 10, 1996. The Court found the fees sought were the same fees sought in Oklahoma, with the exception of $9,355.18 sought in additional fees. No one appealed this finding. The probate court also found Lincoln had already received the $8,000.00 transferred by the Oklahoma probate court and then granted Callahan $22,184.23, Lincoln $15,280.10, and Luebben and Associates $18,545.55. Because the estate assets had been depleted, Callahan then sought and received an order from the court requiring the Amants to return a portion of the estate assets distributed to them to enable the estate to pay the fees ordered. The court entered this order on April 16, 1999. The Amants objected and timely initiated the instant appeal after the court issued its Order of Final Distribution and Closing Estate on August 10, 1999.
Standard of Review
We review probate proceedings de novo, and we will not reverse the decision of the probate court unless it is clearly erroneous. Buchte v. State, 337 Ark. 591, 990 S.W.2d 539 (1999); Barrera v. Vanpelt, 332 Ark. 482, 965 S.W.2d 780 (1998). When reviewing the proceedings, we give due regard to the opportunity and superior position of the probate judge to determine the credibility of the witnesses. Babb v. Matlock, 340 Ark. 263, 9 S.W.3d 508 (2000).
Full Faith and Credit
On appeal, the Amants assert that the Arkansas fee awards are precluded to the extent they were previously denied in Oklahoma due to the operation of the Full Faith and Credit Clause of the United States Constitution. In response, Callahan argues that the Oklahoma court lacked jurisdiction to issue its order. We agree with the Amants and reverse the probate court on the award of fees denied by the Oklahoma probate court.
Our analysis begins with the express finding of the trial court below that many of the fees at issue consisted of fees expressly denied by the Oklahoma probate court in the ancillary proceeding. Appellees acknowledge that they did not appeal the findings of the Oklahoma or the Arkansas probate courts respecting requested fees. The State of Arkansas must give full faith and credit to foreign judgments under the U.S. Constitution. U.S. Const, art. 4, § 1; see also, Ark. Code Ann. § 16-66-602 (Supp. 1995) and First Commer cial Trust Company v. Rank, 323 Ark. 390, 915 S.W.2d 262 (1996). Full faith and credit applies to probate proceedings as well. Gocio v. Gocio. 206 Ark. 579, 177 S.W.2d 742 (1944). The doctrine of res judicata also applies. Where a party subjects itself to the jurisdiction of a foreign court on an issue, the decision by that court on that issue is not subject to collateral attack in Arkansas courts. Monark Boat Co. v. Fischer, 292 Ark. 544, 732 S.W.2d 123 (1987).
Both parties cite the case of Estate of Torian v. Smith, 263 Ark. 304, 564 S.W.2d 521 (1978), as supportive of their positions and determinative on the issue of Full Faith and Credit. The parties are correct. Torian does state the relevant law in this matter. In Torian, the decedent, Lula Torian, died testate while an Arkansas resident. Her executor, the First National Bank of Memphis, opened a probate proceeding in Mississippi where she owned about 900 acres of real property valued at $1,000 per acre. The executor also began a probate proceeding in Arkansas to handle the decedent’s personal property in Arkansas, which approached one-half million dollars. The Arkansas court ordered that the assets in Arkansas would be administered according to Arkansas law and the assets in Mississippi would be administered according to Mississippi law. The executor then sought to withdraw the probate of the will in Mississippi and transfer the same to the Arkansas probate court in Crittenden County. The Mississippi court denied the petition and was affirmed by the Mississippi Supreme Court. The executor sought to charge estate-tax expenses against the personal property assets in Arkansas. The residuary beneficiaries defended contending Arkansas law had not been followed in apportioning the taxes in the Mississippi proceedings. The executor contended that since Mississippi had exercised personal jurisdiction over the beneficiaries, they were bound by the orders of the Mississippi court. We, however, declined to extend full faith and credit to the Mississippi order, holding instead that only Arkansas had in rem jurisdiction over the Arkansas assets of the estate. The Mississippi judgment was only entided to full faith and credit in Arkansas only as far as it concerned property in Mississippi.
In the instant case, the orders of the probate court in Oklahoma concerned disposition of the real property located in Oklahoma over which only the Oklahoma court had in rem jurisdiction. It is undisputed that the Oklahoma court also had personal jurisdiction over tbe parties. We therefore hold that the orders of the Oklahoma probate court concerning fees to the executor, attor ney, and accountant for the estate are entitled to fall faith and credit under the United States Constitution and are therefore impervious to collateral attack in Arkansas state courts. The Orders of the Garland County Probate court granting payment of fees previously denied by the Oklahoma Probate are clearly erroneous and are hereby reversed.
Remaining Fees
Disallowing those fees denied in the Oklahoma proceeding leaves at issue approximately $9,355.18 in additional fees sought and awarded in Arkansas. We note that the probate court’s order grants the fees without comment as to why the statutory amounts set out in Ark. Code Ann. § 28-48-108(a)(1987) were exceeded in this case. Subsection (b) of § 28-48-108 indicates that in exceeding the statutory amounts, the probate court should take into account “the nature and extent of the services, the extent and value of real property, and other relevant circumstances.” Undoubtedly, disallowing the fees denied in Oklahoma has changed that evaluation. Also, the trial court’s pro rata distribution to Callahan, Lincoln, and Luebben of the estate’s $16,342.98 should be reassessed in light of this opinion. We therefore remand this case for the probate court to address the appropriateness of any additional fee award under this statute.
Appellant’s final issue concerned the timeliness of the fee requests. Because the funds transferred to the Arkansas proceedings by the Oklahoma court exceed the remaining $9,355.18 in fees, should they be granted, there is no need to discuss whether the order to return prior distributions was timely. We remand for entry of amended orders consistent with this opinion.
Reversed and remanded. | [
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J. Fred Jones, Justice.
This is an appeal by James E. Garrett from a circuit court judgment sustaining a decision of the Arkansas Employment Security Division Board of Review, which denied appellant Garrett’s claim for benefits under the Arkansas Employment Security Act [Ark. Stat. Ann. § 81-1101 et seq. (Supp. 1973)].
The facts are not in dispute in this case and only a question of law is involved. The facts are these: Mr. Garrett sustained an industrial injury on August 17, 1971, while in the employment of Delrod Enterprises. The injury was compen- sable under the Arkansas Workmen’s Compensation Law and he was paid workmen’s compensation benefits during the course of his temporary disability extending from the date of his injury on August 17, 1971, through June 7, 1973, when he was released from further medical treatment. On June 19, 1973, Mr. Garrett was awarded some permanent partial disability under the Workmen’s Compensation Law as a result of his injury.
The evidence indicates that in June, 1973, Mr. Garrett notified his former employer that he had been released by the doctors as able to return to his regular employment and that he was available and physically able to return and perform the work he had previously done. When Mr. Garrett was not put back to work by his former employer, he filed the claim here involved for unemployment benefits and the claim was denied upon the basis that during his base period, April 1, 1972, through March 31, 1973, he received no wages and performed no personal services within the meaning of the Arkanaas Employment Security Act. The circuit court affirmed and on his appeal to this court Mr. Garrett has designated the point he relies on for reversal as follows:
“The trial court was in error in denying claims for benefits under the Arkansas Employment Security Act to an individual who left his last employment because of injury and disability.”
The question of law involved is broader than the mere question of disqualification from receiving benefits under the Act. The question involved in this case is whether Mr. Garrett was eligible for benefits under the Act and, if so, whether he was disqualified from receiving benefits under the Act. Apparently the decision of both the Appeals Referee and the Board of Review was based on the proposition that during the required base period from April 1, 1972, through March 31, 1973, Mr. Garrett received no wages since he performed no personal services and he was thus ineligible for benefits under § 2 (n) of the Employment Security Act, which defines wages as “All remuneration paid for personal services.”
It was apparently Mr. Garrett’s contention before the Referee and Appeals Board, that the workmen’s compensation benefits he received during the period of his disability constituted, and should be considered as, “wages” in so far as wages apply to the required base period and, that Mr. Garrett was entitled to benefits under § 81-1106 (a) which provides that no worker shall be disqualified for benefits who was required to leave his work because of illness, injury or disability.
Mr. Garrett correctly points out in his brief that in construing a statute, every effort must be made to give effect to the legislative purpose in enacting the statute and that strict and literal meaning of any section of a statute ought not to prevail where it is opposed to the intention of the Legislature; that the Arkansas Employment Security Act is remedial in nature and must be liberally construed in order to accomplish its beneficent purpose and, he argues that in accomplishing the legislative purpose in the cases here involved, the judgment of the circuit court should be reversed. Mr. Garrett then complains that the trial court, in denying benefits, applied a very strict construction to the statutory definition of wages (§ 2 [n] of the Act) and construed the term to mean “all remuneration paid for personal services.” He argues that this interpretation is not only against the express legislative intent to provide compensation to individuals who are involuntarily unemployed, but is in direct contravention of § 5 (a) of the Act, Ark. Stat. Ann. § 81-1106 (a) (Supp. 1973), which provides that:
“. . . no individual shall be disqualified ... if after making reasonable effort to preserve his job rights, he left his last work because of illness, injury or disability. ” (Appellant’s emphasis).
He argues that even under strict construction of the statute an ambiguity would still be apparent because the legislative intent is clearly set forth in the Act to be “ . . . for the benefit of persons unemployed through no fault of their own.” Citing Ark. Stat. Ann. § 81-1101 (Repl. 1960). The appellant then argues that the express legislative intent when coupled with § 5 (a) of the Act clearly shows that no individual could be more entitled to benefits than the appellant — involuntarily unemployed because of severe injuries he sustained while on the job.
The appellant then points out what he considers to be discriminatory and inequitable results permissible under the statute as interpreted by the trial court and argues that a claimant who suffers injuries in the course of his employment which render him totally disabled for a period of only nine months, could qualify for unemployment benefits; whereas, a claimant who suffered a more severe injury and becomes totally disabled for a period of 22 months,, would not be eligible for unemployment compensation because he received no “wages” during his “base period.”
We are not unsympathetic to the appellant’s view as to this apparent unequitable result and we agree that legislative intent should be considered in statutory construction where the legislative intent is important to the decision and is unclear. We are of the opinion, however, that the appellant may have confused his eligibility under the Act with his disqualifications to receive benefits, but we are of the opinion that the Legislature did not share that confusion. As to liberal interpretation to accomplish the legislative intent, in 76 Am. Jur. 2d, § 6, at p. 880, is found the following language:
“[I]n the liberal construction to be accorded an unemployment insurance statute so as to afford all the relief that its language indicates the legislature intended to grant, the interpretation should not exceed the limits of the statutory intent. Similarly, a court is not at liberty to read into the statute provisions which the legislature did not see fit to incorporate, nor may it enlarge the scope of its provisions by an unwarranted interpretation of the language used.”
In 76 Am. Jur. 2d, § 32, at p. 916, is found the following:
“The purpose of the eligibility and disqualification provisions of an unemployment compensation statute is to protect the state unemployment compensation fund against claims of individuals who would prefer benefits to jobs. The eligibility and disqualification provisions, being in pari materia, are to be construed together. Some acts provide that no employee is entitled to benefits unless he is suffering total unemployment as defined therein, and unless wages amounting to a specified sum have been paid to him within his base year, and unless he has registered as unemployed and reported for work as required by the act, is not customarily ‘self-employed, ’ and has not been discharged for certain specified reasons. With respect to the issue of whether an individual has earned sufficient wages in a given period to qualify for unemployment compensation benefits, it has been held that wages actually paid, rather than wages earned, within a statutory base period control eligibility for unemployment benefits.”
Ark. Stat. Ann. § 81-1105 (Repl. 1960 and Supp. 1973), as it applies to the question here involved, provides as follows:
“An insured worker shall be eligible to receive benefits with respect to any week only if the Commissioner finds that— * * *
(e) He has during his base period been paid wages for insured work equal to not less than thirty [30] times his weekly benefit amount and has wages for insured work in at least two [2] quarters of his base period. ”
Ark. Stat. Ann. § 81-1103 (Supp. 1973) provides as follows:
“ * * *
(a) On and after July 1, 1972, ‘Base Period’ means the first four (4) of the last five (5) completed calendar quarters immediately preceding the first day of the benefit year. . . .
(c) On and after July 1, 1972 ‘benefit year’ with respect to any individual means the twelve (12) consecutive month period beginning the first day of the calendar quarter in which he first files a valid claim for benefits in accordance with Arkansas Statutes. ...”
Ark. Stat. Ann. § 81-1104 (Supp. 1973) provides as follows:
“(b) For all benefit years beginning on and after July 1, 1971, an insured worker’s weekly benefit amount shall be an amount equal to one-twenty-sixth [1/26] of his total wages for insured wor paid during that quarter of his base period in which such wages were highest.
No weekly benefit amount shall be less than $15.00.
No maximum weekly benefit amount shall be greater than: Sixty per cent [60%] of the State average weekly wage for insured employment for the calendar year 1970, effective for benefit years beginning July 1, 1971 through June 30, 1972. Sixty percent [60%] of the State average weekly wage for insured employment for the calendar year 1970, effective for benefit years beginning July 1, 1972 through June 30, 1973. Sixty-six and two-thirds per cent [66 2/3] of the State average weekly wage for insured employment for the previous calendar year for benefit years beginning July 1, 1973 and on each July 1 thereafter.
Weekly benefit amounts which are not in even multiples of one dollar [$1.00] shall be computed to the next higher multiple of one dollar [$1.00].
On the first day of June of each year the Commissioner shall determine the average weekly wage of the preceding calendar year in the following manner:
(1) The sum of the total monthly employment reported for the calendar year be divided by twelve [12] to determine the average monthly employment.
(2) The sum of the total wages reported for the previous calendar year shall be divided by the average monthly employment to determine the average annual wage.
(3) The average annual wage shall be divided by 52 to determine the average weekly wage.
(c) For all claims filed on and after July 1, 1971, any insured worker who is unemployed in any week as defined in Section 2 (m) [§ 81-1103 (m)] and who meets the eligibility requirements of Section 4 [§ 81-1105] shall be paid with respect to such week an amount equal to his weekly benefit amount less that part of the remuneration (if any) payable to him with respect to such week which is in excess of forty (40) per cent of his weekly benefit amount. * * *” (Emphasis added).
In 81 C.J.S. § 106, p. 156, is found the following:
“In order to be eligible to receive unemployment compensation, the worker must have earned or received wages in the amount required by statute during the base period for the year in which he claims benefits. Thus there is no right to compensation for unemployment unless, within the statutory base period, remuneration to the amount stated has been earned, including only wages with respect to which contributions have been paid or áre payable.”
And again in 81 C.J.S. § 246, p. 360, is found the following:
“Under the various unemployment compensation statutes the payment of benefits during a benefit year is dependent on earnings within the base year, and an employee is not entitled to benefits if he is without qualifying wages in the applicable base year. Where claimant has qualifying wages in one base year to justify the payment of compensation in the applicable benefit year following, but he fails to file his claim in time for such benefit year, the base year in which qualifying wages have been earned may not, in the absence of statutory authorization, be used to justify an award of benefits for a subsequent benefit year. In determining to which quarter of the base year wages are to be allocated, the actual date when wages are paid pursuant to a definitely assigned pay roll period controls rather than, when such wages are earned.”
Mr. Garrett had not received wages for work performed for almost two years when he filed his claim on July 5, 1973, and his contention is predicated upon Ark. Stat. Ann. § 81-1006 (Supp. 1973) which provides as follows:
“For all claims filed on and after July 1, 1973, if so found by the Commissioner, an individual shall be disqualified for benefits.
(a) If he voluntarily and without good cause connected with the work, left his last work. Such disqualification shall continue until, subsequent to filing his claim, he has had at least 30 days of paid work.
Provided no individual shall be disqualified under this subsection if, after making reasonable efforts to preserve his job rights, he left his last work due to a personal emergency ... or, if after making reasonable efforts to preserve his job rights, he left his last work because of his illness, injury or disability.”
Then follow other exceptions such as one spouse following the other to a new living area and a wife voluntarily leaving her employment due to pregnancy. Under succeeding subsections a claimant worker may be disqualified if he is discharged because of misconduct in connection with his work and failing to accept available suitable work when offered, etc.
Of all the exceptions made and recited in the Employment Security Act, including § 81-1105 (f) pertaining to loss of employment “by reason of a labor dispute other than a lockout . . .,” physical disability even under the Workmen’s Compensation Law when it extends over and beyond a base period, is not among the exceptions made by the Legislature, and we are unable to read such exception into the provisions of the Act.
We are of the opinion, and so hold, that Mr. Garrett was not eligible for benefits under the Act, consequently, we do not reach the question of whether he was disqualified from receiving benefits because of his extended disability.
The judgment is affirmed. | [
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PER CURIAM.
On April 27, 2000, we issued an order for AM. Schay to appear before this court at 9:00 a.m., Thursday, May 11, 2000, to show cause why he should not be held in contempt of court for failure to file an appellant’s brief after a final extension had been granted.
Alvin Schay appeared on May 11, 2000. At that time, he entered a plea of not guilty and requested a hearing. Therefore, we appoint the Honorable Jack Lessenberry as a master to conduct the hearing. After the hearing, we direct the master to make findings of fact and file them with the court. Upon receiving the master’s findings, we will decide whether Alvin Schay should be held in contempt. | [
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Carleton Harris, Chief Justice.
This is the third appeal in this litigation. See Ratzlaff, et al v. Franz Foods of Arkansas, 250 Ark. 1003, 468 S.W. 2d 239, and Ratzlaff, et al v. Franz Foods of Arkansas, 255 Ark. 373, 500 S.W. 2d 379. The pertinent facts are set out in the first Ratzlaff case, and it is not necessary that those facts be here reiterated. It is suf ficient to say that appellants contend that appellee has discharged certain noxious wastes into the sewer system of the City of Green Forest, allegedly polluting Dry Creek, a stream running through appellant’s properties, and they allege damages. In the first case, the trial court sustained a demurrer to the complaint and we reversed and remanded, our holding being largely predicated on the fact that the complaint asserted that appellee had violated a contractual duty with the City. We also pointed out, however, that in Carmichael v. City of Texarkana, 116 F. 845, 54 C.C.A. 179, it was recognized that a user of the City’s sewage facilities could, under some circumstances, be liable. In the second Ratzlaff case, the appeal was dismissed because we held that it constituted a “piecemeal appeal”. Following the remand of that case, four additional plaintiffs joined the original plaintiffs in the suit against Franz Foods and except for slight variations of property descriptions and the amount of damages sought, the complaints and amended complaints are substantially identical to those of original appellants. There are three allegations, the first being the existence of an oral or written contract between appellant and the City of Green Forest, by which contract Franz was restricted from depositing certain production waste matters into the City Sewer System. It was next asserted that Franz was directly depositing such matter into Dry Creek, causing the pollution of said stream to the damage of appellants, and finally it was asserted that Franz had violated the City ordinance which specifically provided that certain deposits of waste products should not be deposited into the sewer system of the City. As to the last contention, the court granted a summary judgment, holding, as a matter of law, that this allegation did not state a cause of action; subsequently, the evidence being stipulated, the court granted a directed verdict and dismissed the complaint. Thereafter, this appeal was perfected, but only one point is here relied upon, viz-, “The existence of Ordinance No. 272 of the City of Green Forest, Arkansas, and the violation of such ordinance by the appellee states a cause of action against the appellee.”
Ordinance No. 272 is an exhibit to the complaint.
As to the ordinance, the complaint, inter alia, asserts violations of Article III, Section 3 (b), (d), Section 4 (b), (c), (f), (h), (i) (3), (i) (4), and (j) of said ordinance. We agree with appellee that violations of Section 4 and its subdivisions do not assert a cause of action since that section provides that no substances, wastes, etc., shall be discharged into the sewer system “if it appears likely in the opinion of the Water Superintendent or Sewer Superintendent such wastes can harm either sewers, sewage treatment process or equipment, have an adverse effect on the receiving stream, or can otherwise endanger life, limb, public property, or constitute a nuisance.” There is no allegation in the complaints or amended complaints that the superintendent has made any finding that waste deposited by Franz can harm the system, and without such an allegation, a cause of action cannot be predicated on this section.
Violations mentioned in Section 3, however, are not dependent upon the opinion of the Sewer Superintendent. Pertinent provisions in that section read as follows:
“Section 3. No person shall discharge or cause to be discharged any of the following described waters or wastes to any public sewers: . . .
(b) Any waters or wastes containing toxic or poisonous solids, liquids or gases in sufficient quantity, either singly or by interaction with other wastes to injure or interfere with any sewage treatment process [to] constitute a hazard to humans or animals, create a public nuisance or create any hazard in the receiving waters of the sewage treatment plant, including, but not limited to, cyanides in excess of two (2) mg/1 as CN in the wastes as discharged to the public sewer.
(d) Solid or viscose substances in quantities or of such size capable of causing obstruction to the flow in sewers or other interference with the proper operation of the sewage works such as, but not limited to, ashes, cinders, sand, mud, straw, egg shells, shavings, metal, glass, rags, feather, tar, plastics, wood, unground garbage, whole blood, pauch manure, hair and fleshings, entrails, paper dishes, cups, milk containers, etc., either whole or ground by garbage grinders.”
Appellee argues, however, that Article VI of the Ordinance covers this section. Article VI reads:
“Section 1. Any person found to be violating any provision of this ordinance shall be served by the Water Superintendent or the Sewer Superintendent with written notice stating the nature of the violation and providing a reasonable time limit for the satisfactory correction thereof. The offender shall, within the period of time stated in such notice, permanently cease all violations.
Section 2. Any person who shall continue any violation beyond the time limit provided for in Article VI, Section 1, shall be guilty of a misdemeanor, and on conviction thereof may be fined in an amount not exceeding One Hundred Dollars ($100.00) for each violation. Each day in which any such violation shall continue shall be deemed a separate offense.
Section 3. Any person violating any of the provisions of this ordinance shall become liable to the City for any expense, loss, or damage occasioned the City by reason of such violation.”
It is contended that since there are no allegations that the Sewer Superintendent has served a notice on appellee, as provided in Section 1, the complaint fails to state a cause of action.
Appellee, in its brief, says with reference to Section 3 and the pertinent subsections:
“This leaves only the allegations relative to violation of Sub-Sections 3 (b), and (d) to be dealt with. Article VI of the ordinance specifically and unequivocally provides that the deposit of any of the prohibited substances in the sewage system is not unlawful unless and until the water superintendent or the sewer superintendent finds that the ordinance is being violated, and serves written notice on the violator providing a reasonable time for the satisfactory correction of the deficiency. Section 2 of Article VI further specifically provides that there is no violation of law unless the person notified continues to deposit the substances in the sewage system after the period of time stated in the notice. There is not even any allegation that these requirements of the ordinance have been fulfilled; thus, the complaint also totally fails to state a cause of action relative to the alleged violations of Article III of the ordinance.”
We do not agree that Article VI provides that the deposit of prohibited substances into the sewage system is not unlawful until the Superintendent finds that the ordinance is being violated. In fact, Article VI deals entirely with enforcement for a violation and sets forth the criminal penalty in event an offender shall continue to violate the ordinance after being advised by the Sewer Superintendent with written notice stating the nature of the violation and providing a reasonable time for the correction thereof. Civil litigation is not dependent upon criminal prosecution and of course there is frequently civil litigation between parties where one has allegedly violated criminal provisions, but has not been prosecuted. It is true that there is no allegation in the complaint to the effect that the Superintendent has served a notice of a violation upon appellee but this does not necessarily mean that no violation has occurred. At any rate, there is nothing in Article VI which provides that even though one deposits prohibited (by the ordinance) substances into the sewage system, such act is not unlawful until notice has been served by the Superintendent.
To return to the case of Carmichael v. City of Texarkana, supra, the case was originally filed in the District Court at Texarkana, wherein complainants sought the abatement of a nuisance alleged to have been created by the discharge of sewage from the sewer system of the City on premises of com plainants, and further sought to recover damages caused to complainants thereby. Both the City of Texarkana and certain individuals were named as defendants. The individual defendants demurred and such demurrer was sustained in a decree rendered in May, 1899. The suit remained pending against the City. Subsequently, in 1901, the pleading against the City was dismissed. This case is styled Carmichael v. City of Texarkana, 94 F. 561 (W.D. Ark.). The decree was thereafter appealed to the United States Court of Appeals (Eighth Circuit) and was affirmed, that court finding that, as to the City, there was no evidence of negligent construction or maintenance of the sewer system. As to the individuals, the court held that inhabitants of a city who call upon such city to construct a sewer which the city has the authority to construct and control, and such inhabitants who use the improvement in the way prescribed by law, are not liable jointly with the city for damages which result to third parties. In the trial court opinion, which was left intact by the Court of Appeals, District Judge Rogers stated:
“It does not appear from the complaint that the connections made by the individual defendants with the defendant city’s sewer system were made in violation of any city ordinance or statute of the state, nor will it be assumed in the absence of allegations to that effect.”
The question here presented is not exactly the same as that in Carmichael, but the principle is controlling, i.e., we have here the allegation that Section 3 of the City ordinance was violated by appellee depositing certain substances into the sewer system contrary to the ordinance.
We hold that a cause of action was stated and the court erred in granting a summary judgment to appellee. The judgment is therefore reversed and the cause remanded to the Carroll County Circuit Court (Eastern District) with directions to proceed in a manner not inconsistent with this opinion.
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ROBERT L. Brown, Justice.
This case involves an original tipetition ce. by petitioner Oscar Stilley pursuant to Amendment 7 of the Arkansas Constitution and Act 877 of 1999. The petition deals with a proposed amendment to the Arkansas Constitution to authorize lotteries, raffles, and bingo throughout the state as well as casino gambling at six sites in the state (hereinafter the “Gaming Amendment”). On August 30, 1999, the Attorney General issued an opinion approving, with minor corrections, the text of the popular name and ballot title for the amendment submitted by intervenor Arkansas Casino Corporation. On August 31, 1999, respondent Sharon Priest, as Secretary of State also approved and certified as sufficient the popular name and ballot title for the ballot.
On November 29, 1999, petitioner Oscar Stilley filed an original action petition in this court and requested a declaratory judgment on the legal sufficiency of the popular name and ballot title of the Gaming Amendment under Amendment 7 to the Arkansas Constitution and Act 877 of 1999, now codified at Ark. Code Ann. § 7-9-501 through 506 (Repl. 2000). This court dismissed Stilley’s action in Stilley v. Priest, 340 Ark. 259, 12 S.W.3d 189 (2000) (per curiam), on the basis that Stilley did not follow the correct procedure as set out in Act 877. We pointed out that Stilley had never filed a petition with the Secretary of State, questioning the legal sufficiency of the initiative petition. We noted that under Act 877, only after the Secretary of State has made her determination following a petition questioning an initiative’s legal sufficiency, can this court review that decision. In our per curiam opinion, we also pointed out that an issue exists concerning the constitutionality of Act 877 in light of Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990).
Following our dismissal of his petition, Stilley petitioned the Secretary of State and questioned the legal sufficiency of the initiative petition. On January 26, 2000, the Secretary of State issued a Declaration stating that she believed the popular name and ballot title were fair and accurate and that the measure, if subsequendy approved by the electorate, would be facially valid. Stilley then filed his original action petition in this court pursuant to Amendment 7 and Act 877 for a review of the decision by the Secretary of State.
I. Constitutionality of Act 877
For his first point, Stilley asks this court to uphold the validity of Act 877 of 1999. Act 877 provides that any taxpayer and voter can petition the Secretary of State for a determination of the legal sufficiency of a proposed initiative. Ark. Code Ann. § 7-9-503(a)(1) (Repl. 2000). The Secretary of State shall then declare, after consulting with the Attorney General, whether the popular name or ballot title are fair and complete and the proposed measure is valid under the state and federal constitutions and state law. Ark. Code Ann. § 7-9-503 (b) (Repl. 2000). If the Secretary of State declares the initiative to be legally insufficient, a time for curing by the sponsors is allowed. Ark. Code Ann. § 7-9-504 (Repl. 2000). A right of review of the Secretary of State’s decision by this court is provided. Ark. Code Ann. § 7-9-505 (Repl. 2000).
Stilley initially asks this court to distinguish the instant case from the case of Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990), where this court held that portions of Act 280 of 1989 were unconstitutional under Amendment 7. In Finn, an original action had been filed in this court to determine whether a proposed lottery initiative was insufficient due to misleading text in the ballot title and invalid signatures. The action was filed after certification of the initiative petition by the Secretary of State but more than forty-five days after publication of the proposed amendment. At issue in that case was Act 280 of 1989, which required in part that petitions contesting the terms of a ballot title must be filed within forty-five days of publication of the proposed amendment or they would be untimely. This court struck down the forty-five-day requirement in Act 280 as a limit on the provisions of Amendment 7 and as an expansion of this court’s jurisdiction to review proposed initiatives.
Stilley in his brief distinguishes the issues surrounding Act 280 in Finn from the issues of Act 877 in the case at hand. He maintains that Act 280 cut off the rights of challengers after a certain time period, where Act 877 does not. In the alternative, Stilley argues that the Finn case was wrongly decided and should be overruled.
The respondent, Sharon Priest as Secretary of State, and the intervenor, Arkansas Casino Corporation, weigh in on this latter point and urge this court to overrule the Finn decision. Priest argues that Act 877 merely permits a challenge to the text of an initiative petition at an earlier stage, but that it does not curtail the right of a challenger to contest the initiative’s signatures at a later date. Amendment 7 does not prohibit an early review, says Priest. She argues that instead Amendment 7 specifically contemplates laws by the General Assembly to facilitate its operation.
The Casino Corporation agrees with Priest and claims that the decision in Finn that an initiative petition must have signatures is based on one case — Scott v. McCuen, 289 Ark. 41, 709 S.W.2d 77 (1986). The Casino Corporation points out that in Scott, we wrote: “Our jurisdiction attaches only after the petition is declared sufficient and that determination must be of the sufficiency of both the title and the signatures.” 289 Ark. at 45, 709 S.W.2d at 79 (emphasis added). No case authority accompanied this statement in Scott, according to the Casino Corporation. Furthermore, the constitutionality of a state statute was not at issue in that case.
We begin by looking at Scott v. McCuen, supra, upon which Finn was based. In Scott, the Secretary of State had certified the text of a ballot title before an initiative petition had been submitted to him and prior to the collection of signatures. He had done so without specific legislative authority from the General Assembly. We held that this was contrary to Amendment 7 and that in the past certification by the Secretary of State had only occurred following submission of the initiative petition with signatures. We held that only after an initiative petition had been certified both as to title and signatures did this court have jurisdiction to review it under Amendment 7.
Priest contends that the statement in Scott concerning jurisdiction is mere dictum, but we disagree. Rather, the statement goes to the heart of this court’s jurisdiction in original actions on initiative petitions and limits that jurisdiction prior to the time that signatures have been collected. Furthermore, in Finn we concluded that our review before certification by the Secretary of State as to popular name, ballot title, and signatures constituted an unlawful and unconstitutional expansion of this court’s jurisdiction. This blanket statement relating to the necessity for signatures before this court has jurisdiction to review an initiative petition places both Scott and Finn directly at odds with Act 877.
We have come to the conclusion that both Scott v. McCuen, supra and Finn v. McCuen, supra, were wrongly decided with respect to the jurisdiction of this court. We first observe that while Amendment 7 does contemplate filing the initiative petition with the requisite signatures with the Secretary of State for a sufficiency determination, at no point does it preclude an earlier review of the text of the popular name and ballot title or the validity of the proposed amendment. On the contrary, Amendment 7 specifically provides that “laws may be enacted to facilitate its operation.” An early resolution of a contest to the content of a popular name and ballot title and the validity of the initiative would certainly facilitate the process for legislative enactments by the people.
In this regard, there is clear precedent for approving the constitutionality of a legislative act requiring early review of the text of an initiative petition prior to the collection of signatures. See Washburn v. Hall, 225 Ark. 868, 286 S.W.2d 494 (1956). In Washburn, the issue was whether this court should compel the Secretary of State to certify an initiative petition when the sponsors had failed to obtain the prior approval of the Attorney General of the text of the popular name, ballot title, and amendment. Amendment 7 does not provide for prior approval by the Attorney General. Act 195 of 1943, now codified at Ark. Code Ann. § 7-9-107(a) through (e) (Repl. 2000), however, provided for the submission of a draft of an initiative petition to the Attorney General for his review, approval, or amendment prior to collecting signatures. Act 195 further provided that should the Attorney General fail to act and if the sponsors felt aggrieved by his actions, they could petition this court for proper relief. See Ark. Code Ann. § 7-9-107(d) (Repl. 2000). We refused to compel certification and said:
Act No. 195 of 1943, Ark. Stats. 2-208, is no unwarranted restriction on Amendment No. 7. Obviously, the Legislature considered that in signing a referendum or initiative petition the signer should have the benefit of a popular name and ballot title that would give as much information about the proposed act as is possible to give by such means. It is apparent that the Legislature considered that the safer method would be to first submit the proposed popular name and ballot title to the Attorney General of the State for his approval and, if he did not approve that which was submitted, he should substitute and certify more suitable ones. This statute in no way curtails the operation of Amendment No. 7 but is in aid of the amendment and insures the giving to the signer of the petition as much information as is possible and practicable with regard to what he is being asked to sign. Here, the Attorney General was not asked to approve a popular name or a ballot title. Nothing was pointed out to him as a popular name or ballot title which the circulators of the petition intended to use as such.
Washburn, 225 Ark. at 871-872, 286 S.W.2d at 497.
It is true that our decision in Washburn v. Hall, supra, was not couched in terms of the jurisdiction of this court to review. Yet, the decision unmistakably stands for the proposition that early review of the petition’s text by the Attorney General and by this court did not impede the Amendment 7 process. Indeed, it facilitated it. Similarly, we do not believe that an earlier review of the text of the initiative by the Secretary of State and this court pursuant to Act 877 impedes a later certification of a petition with signatures by the Secretary of State. On the contrary, an early determination of the initiative’s text would have the salutary effect of facilitating a smoother operation of Amendment 7. That amendment, after all, has as its ultimate purpose the establishment of a procedure by which the people can adopt legislative measures. Any impediment to that process caused by a late review of the initiative’s text certainly works against that laudable goal.
We are mindful that in the past ten years at least seven measures have been stricken from the ballot at the eleventh hour before the November general election owing to a deficiency in the text of the ballot title. See Scott v. Priest, 326 Ark. 328, 932 S.W.2d 746 (October 21,1996) (struck ballot title to amendment that would allow casino gambling and legalize a lottery, charitable raffles, and bingo games); Crochet v. Priest, 326 Ark. 338, 931 S.W.2d 128 (October 21, 1996) (struck ballot title to amendment that would authorize lottery ticket games, charitable bingo, raffles, and video terminal games); Parker v. Priest, 326 Ark. 386, 931 S.W.2d 108 (October 21, 1996) (struck ballot title to amendment that would authorize a state lottery and legalize bingo, raffles, and casino gambling); Christian Civic Action Comm. v. McCuen, 318 Ark. 241, 884 S.W.2d 605 (October 14, 1994) (struck ballot title to amendment that would authorize a state lottery, nonprofit bingo, nonprofit raffles, and casino-style gambling); Bailey v. McCuen, 318 Ark. 277, 884 S.W.2d 938 (October 14, 1994) (struck ballot title to amendment that would restructure the workers’ compensation commission and revise workers’ compensation law); Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (October 20, 1994) (struck ballot title to amendment that would authorize casino gambling).
As a result, this court urged the enactment of a procedure that would ameliorate the situation and provide some mechanism for an earlier review. See Page v. McCuen, supra. In Page, we said:
We commend the General Assembly’s past effort in attempting to establish reasonable statutory timetables to implement initiative and referendum measures under Amendment 7. We respectfully ask its further consideration and action and encourage the General Assembly to make another attempt to establish an initiative and referendum procedure that will permit early resolution of such issues. Until appropriate action is taken to correct the problems attendant to proposals submitted under Amendment 7, citizens can continue to expect measures to be removed from the ballot immediately prior to the election. This court does not enjoy being in the “last-minute” position of review. The people of Arkansas deserve an initiative and referendum procedure which allows them the confidence that measures, after having been adequately reviewed, will not be removed from the ballot. The sponsors of initiative proposals should also be assured their ballot titles and proposed measures meet required guidelines and rules before they spend their time, energy and monies in getting their proposal before the voters.
318 Ark. at 347-348, 884 S.W.2d at 954-955. See also Scott v. Priest, supra (same language recited by this court).
It may well be that our decision today will result in two reviews of some petitions, the first dealing with the text of the popular name and ballot title and the validity of the proposed amendment, and the second occurring after certification of the petition’s signatures. Having two sufficiency determinations on those two matters has not been that unusual in recent years. Under current procedures, we often have scheduled a master to hear the issue of signature deficiencies, while we simultaneously reviewed textual problems. See, e.g., Roberts v. Priest, 334 Ark. 503, 975 S.W.2d 850 (October 15, 1998) (challenge to both the sufficiency of the signatures and the ballot title text); Scott v. Priest, 326 Ark. 328, 932 S.W.2d 746 (1996) (ballot title held insufficient); Scott v. Priest, 326 Ark. 466, 932 S.W.2d 751 (1996) (challenge to sufficiency of signatures held moot in light of decision on ballot tide).
The dissent argues that Amendment 7 mandates only one review of the legal sufficiency of the initiative petition by the Secretary of State and by this court and that this review occurs only after the collection of signatures. The dissent further argues that “petition” as used in Amendment 7 refers only to a document that contains the proposed initiative and the required signatures. We disagree for the reasons already stated in this opinion. Amendment 7 does provide for a determination of the legal sufficiency of the signatures by the Secretary of State subject to this court’s review but at no point does it foreclose a prior review of the legal sufficiency of the proposed initiative’s text, including the popular name and ballot tide. Moreover, Amendment 7 clearly uses the term “petition” at one point to refer to the proposed initiative prior to filing when it states that a “petition” may be circulated in “parts” for the gathering of signatures. The dissent acknowledges this sentence in Amendment 7 in seeming contradiction to the dissent’s claim that “petition” as used in the amendment always refers to the document at time of filing with the collected signatures. Amendment 7 simply is not at odds with Act 877.
In summary, we conclude that Act 877 of 1999 does not run afoul of the provisions of Amendment 7 to the Arkansas Constitution. We overrule Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990), and Scott v. McCuen, 289 Ark. 41, 709 S.W.2d 77 (1986), to the extent that they prevent a review of the text of a popular name and ballot title and the validity of the proposed measure prefatory to the gathering of signatures.
II. Sufficiency of the Ballot Title
We turn then to the issue of whether the popular name and ballot title for the proposed amendment are sufficient. We conclude that they are.
Stilley only argues for one change in the ballot title in his brief. That change concerns the Arkansas Educational Trust Fund, which will receive money from gaming revenues under the proposed amendment to be used as grants to finance a college education for students who qualify. That requested change is best illustrated by the following:
ESTABLISHING THE ARKANSAS EDUCATIONAL TRUST FUND, REGULATED AND ADMINISTERED BY THE DEPARTMENT OF HIGHER EDUCATION, TO PROVIDE GRANTS TO QUALIFIED HIGH SCHOOL GRADUATES OF ACCREDITED HIGH SCHOOLS FOR POST-SECONDARY EDUCATION;
The marked through language should be replaced by the underlined language, according to Stilley. This, he maintains, is needed because the ballot title misleads by not stating that under the Gaming Amendment some of the least fortunate Arkansas students who do not attend accredited high schools will be excluded from trust fund grants.
We disagree that a specific, reference to accredited high schools is required. We have held that a ballot title must be free from a misleading tendency. Bailey v. McCuen, supra; Plugge v. McCuen, 310 Ark. 654, 841 S.W.2d 139 (1992). We have further held that a ballot tide must be intelligible, honest, and impartial so as to inform voters with such clarity that they can cast their ballots with a fair understanding of the issues presented. Parker v. Priest, supra; Bailey v. McCuen, supra. If information is omitted from the ballot tide which is an essential fact which would give the voter serious ground for reflection, it must be disclosed. Parker v. Priest, supra; Bailey v. McCuen, supra. Finally, we have held that we are liberal in construing Amendment 7 and in determining the sufficiency of a ballot tide. Bailey v. McCuen, supra; Porter v. McCuen, 310 Ark. 562, 839 S.W.2d 512 (1992).
Under these standards, we do not agree that Stilley’s challenge is of such significance for us to deem the ballot title insufficient. Certainly, “qualified high school graduate” tells the voter that certain qualifications must be met. Thus, the voter is put on notice that there may be one or more factors for determining eligibility. In short, the ballot title is sufficient to give the voter an intelligible idea of what is involved. See Plugge v. McCuen, supra; Bailey v. McCuen, supra. Because Stilley apparently has abandoned two other grounds for insufficiency raised in his petition — funding for the Arkansas Gaming Commission and the tendency for a monopoly — we need not consider them.
A challenge to the sufficiency of the text of a proposed amendment under Act 877 is obviously a matter of first impression for this court. At oral argument, questions were asked concerning whether Act 877 might lead to “friendly” actions to garner this court’s approval of the text of proposed amendments and whether subsequent petitions concerning sufficiency of the text could be filed on other grounds, perhaps after certification of the signatures by the Secretary of State. Those are not issues raised by the parties in the instant case, and we decline to address them. Suffice it to say that Stilley, in his petition, has mounted a bonafide challenge to the text of the Gaming Amendment under Act 877, and we find no merit to his challenge.
III. Miscellaneous Points
Because we do not conclude that a change in the ballot title is required, we need not address Stilley’s arguments on curing the ballot title and the Casino Corporation’s concern about previously collected signatures. Both matters are moot.
Nor should we consider Stilley’s points concerning the extent of fraud necessary to void a ballot title and the elimination of length as a criterion in deciding ballot title sufficiency. Neither issue is raised in connection with the ballot title in the instant case, and this court has been constant in its resolve against issuing advisory opinions. Central Emergency Medical Services, Inc. v. State, 332 Ark. 592, 966 S.W.2d 257 (1998). Under this reasoning, we also decline to give “guidance” to Stilley on a time line for reviewing initiative petitions.
Petition denied.
Imber and Thornton, JJ„ dissent.
ADDENDUM
Popular Name
AN AMENDMENT TO ESTABLISH A STATE LOTTERY; TO PERMIT CHARITABLE BINGO GAMES AND RAFFLES; TO ALLOW ARKANSAS CASINO CORPORATION TO OWN AND OPERATE SIX CASINO GAMBLING ESTABLISHMENTS ONE EACH IN SEBASTIAN, PULASKI, GARLAND, MILLER, CRITTENDEN AND BOONE COUNTIES; AND TO ESTABLISH THE ARKANSAS EDUCATIONAL TRUST FUND AND THE ARKANSAS GAMING COMMISSION.
BALLOT TITLE
AN AMENDMENT TO THE ARKANSAS CONSTITUTION TO: 1) ESTABLISH A STATE-RUN LOTTERY, TO BE OPERATED AND REGULATED BY THE ARKANSAS GAMING COMMISSION; 2) AUTHORIZE CHARITABLE BINGO AND RAFFLES IN ARKANSAS AS REGULATED BY THE ARKANSAS GAMING COMMISSION; AND 3) IMMEDIATELY AUTHORIZE SIX CASINO GAMBLING ESTABLISHMENTS, TO BE OWNED AND OPERATED BY “ARKANSAS CASINO CORPORATION” (A PRIVATE FOR-PROFIT CORPORATION), ONE EACH TO BE LOCATED IN SEBASTIAN, PULASKI, GARLAND, MILLER, CRITTENDEN AND BOONE COUNTIES, THE OPERATIONS OF WHICH SHALL BE AUDITED BY THE ARKANSAS GAMING COMMISSION FOR THE SOLE PURPOSE OF INSURING THAT CASINO TAXES DUE TO THE STATE ARE PAID, BUT WHICH SHALL NOT OTHERWISE BE REGULATED BY THE GAMING COMMISSION; REQUIRING THE GENERAL ASSEMBLY TO ENACT LEGISLATION SO THAT THE STATE LOTTERY AND CHARITABLE BINGO AND RAFFLES MAY BEGIN AT THE EARLIEST POSSIBLE TIME, BUT PROHIBITING THE GENERAL ASSEMBLY FROM ENACTING ANY LEGISLATION REGARDING CASINO GAMING; PROHIBITING CASINO GAMING IN ANY OTHER COUNTY OR AT ANY OTHER THAN THE LOCATIONS OPERATED BY ARKANSAS CASINO CORPORATION; PROHIBITING PERSONS UNDER THE AGE OF 21 FROM PURCHASING LOTTERY TICKETS OR PARTICIPATING IN BINGO, RAFFLES OR CASINO GAMING; REQUIRING AT LEAST 50% OF STATE LOTTERY REVENUE TO BE DISTRIBUTED AS PRIZES, AT LEAST 45% OF LOTTERY REVENUE TO BE PAID TO THE ARKANSAS EDUCATIONAL TRUST FUND AND NO MORE THAN 5% FOR THE EXPENSES OF THE LOTTERY; REQUIRING PAYMENT OF A 15% TAX ON THE “NET GAMING REVENUE” (AS DEFINED) OF ANY CASINO, TO BE ALLOCATED AS FOLLOWS: 80% TO THE STATE’S GENERAL FUND FOR THE PURPOSE OF REDUCING OR ELIMINATING THE GROSS RECEIPTS TAX ON FOOD PURCHASED IN A RETAIL FOOD STORE, WITH ANY EXCESS RETURNED TO THE GENERAL FUND, 10% TO THE ARKANSAS EDUCATIONAL TRUST FUND; 5% OF THE TAX OF ONE CASINO TO THE COUNTY IN WHICH THAT CASINO IS LOCATED (IF THE CASINO IS IN A CITY LIMITS THEN THIS REVENUE SHALL BE DIVIDED EQUALLY BETWEEN THE COUNTY AND THE CITY), 1% TO THE ARKANSAS COMPULSIVE GAMBLING FOUNDATION FOR THE TREATMENT AND PREVENTION OF GAMBLING ADDICTION; 4% TO THE STATE’S GENERAL FUND FOR THE OPERATIONAL COSTS OF THE ARKANSAS GAMING COMMISSION; PROHIBITING THE GENERAL ASSEMBLY FROM REDUCING LOCAL OR STATE FUNDING BECAUSE OF CASINO TAX REVENUE; PROHIBITING ANY OTHER STATE OR LOCAL TAXES, FEES OR ASSESSMENTS ON THE FURNITURE, FIXTURES, EQUIPMENT, PROPERTY, BUSINESS OPERATIONS, GROSS REVENUES, NET GAMING REVENUES OR INCOME OF ARKANSAS CASINO CORPORATION FROM OR USED IN CASINO GAMING; ESTABLISHING THE ARKANSAS EDUCATIONAL TRUST FUND, ALLOCATED AND ADMINISTERED BY THE DEPARTMENT OF EDUCATION, TO PROVIDE GRANTS TO QUALIFIED HIGH SCHOOL GRADUATES FOR POST-SECONDARY EDUCATION; DEFINING POST-SECONDARY EDUCATION AS THE PURSUIT OF AN UNDERGRADUATE DEGREE AT A PUBLIC OR PRIVATE UNI VERSITY, COLLEGE, COMMUNITY COLLEGE OR A DEGREE FROM A VOCATIONAL-TECHNICAL SCHOOL; REQUIRING NOT LESS THAN 24% OF THE EDUCATIONAL TRUST FUND TO BE USED TO EXPAND PREKINDERGARTEN EDUCATIONAL PROGRAMS AND TUTORIAL PROGRAMS FOR PRIMARY AND SECONDARY STUDENTS; CREATING THE ARKANSAS GAMING COMMISSION, WHOSE MEMBERS SHALL BE APPOINTED BY THE GOVERNOR WITH THE ADVICE AND CONSENT OF THE SENATE, WHO SHALL: 1) ESTABLISH AND OPERATE THE STATE LOTTERY; 2) LICENSE AND REGULATE CHARITABLE BINGO AND RAFFLES; AND 3) AUDIT THE OPERATIONS OF THE CASINOS FOR THE SOLE PURPOSE OF INSURING THAT ALL CASINO TAXES DUE TO THE STATE ARE PAID; PROVIDING FOR JUDICIAL REVIEW OF THE COMMISSION’S DECISIONS OR ACTIONS; ALLOWING A CASINO TO OPERATE ANY DAY FOR ANY PORTION OF THE DAY; ALLOWING THE SELLING OR FREE FURNISHING OF ALCOHOLIC BEVERAGES IN CASINOS DURING ALL HOURS THEY OPERATE BUT OTHERWISE REQUIRING ADHERENCE TO ALL ALCOHOLIC BEVERAGE CONTROL BOARD REGULATIONS; PERMITTING THE SHIPMENT OF GAMBLING DEVICES INTO AUTHORIZED COUNTIES FOR PURPOSES OF FEDERAL LAW; RENDERING THE PROVISIONS OF THE AMENDMENT SEVERABLE; DECLARING INAPPLICABLE ALL CONSTITUTIONAL PROVISIONS AND LAWS TO THE EXTENT THEY CONFLICT WITH THE AMENDMENT; AND DECLARING THE AMENDMENT OPERATIVE UPON PASSAGE.
ANNABELLE Clinton Imber, Justice, dissenting. The majority correctly concludes that our decisions in Finn v. McCuen, 303 Ark. 418, 798 S.W.2d 34 (1990), and Scott v. McCuen, 289 Ark. 41, 709 S.W.2d 77 (1986), are directly at odds with Act 877 of 1999, now codified at Ark. Code Ann. §§ 7-9-501 — 506 (Repl. 2000). Act 877 of 1999 provides for this court to review a “legal sufficiency” declaration by the secretary of state with respect to a proposed petition which has not been certified by the secretary of state as having a sufficient number of signatures to be placed on the ballot. We clearly held in Finn v. McCuen, supra, that “any statute which purports to confer on us the power to review an initiative petition which has not been certified as to the popular name, ballot title, and signatures constitutes an unlawful and unconstitutional expansion of our jurisdiction.” Id. at 424, 798 S.W.2d at 37. (Emphasis added). The majority overcomes precedent by summarily overruling Finn v. McCuen, supra, and Scott v. McCuen, supra, and then declares that Act 877 of 1999 “does not run afoul of the provisions of Amendment 7 to the Arkansas Constitution.” In so doing, the majority makes only one slight reference to the actual provisions of Amendment 7.
This court’s original jurisdiction must be invoked pursuant to Amendment 7. See Berry v. Hall, 232 Ark. 648, 339 S.W.2d 433 (1960); Hargis v. Hall, 196 Ark. 878, 120 S.W.2d 335 (1938); Rambo v. Hall, 195 Ark. 502, 112 S.W.2d 951 (1938). Our jurisdiction to entertain such original actions cannot be enlarged by the legislature. American Party of Arkansas v. Brandon, 253 Ark. 123, 484 S.W.2d 881 (1972). Amendment 7 to the Arkansas Constitution provides in pertinent part:
State Wide Petitions
Initiative — The first power reserved by the people is the initiative. Eight per cent of the legal voters may propose any law and ten per cent may propose a Constitutional Amendment by initiative petition, and every such petition shall include the text of the measure so proposed. Initiative petitions for State-wide measures shall be filed with the Secretary of Statenot less than four months before the election at which they are to be voted upon . . .
* * * *
The Petition
Title — At the time of filing petitions the exact title to be used on the ballot shall by the petitioner be submitted with the petition and on State-wide measures, shall be submitted to the State Board of Election Commissioners, who shall certify such tide to the Secretary of State, to be placed upon the ballot . . .
* * *
Verification —• Only legal votes shall be counted upon petitions. Petitions may be circulated and presented in parts, but each part of any petition shall have attached thereto, the affidavit of the persons circulating the same, that all signatures thereon were made in the presence of the affiant, and that to the best of the affiant’s knowledge and behef each signature is genuine, and that the person signing is a legal voter ...
* * 4= *
Sufficiency — The sufficiency of all State-wide petitions shall be decided in the first instance by the Secretary of State, subject to review by the Supreme Court of the State, which shall have original and exclusive jurisdiction over all such causes . . .
* * * *
Self-Executing — This section shall be self-executing, and all its provisions shall be treated as mandatory, but laws may be enacted to facilitate its operation.
Ark. Const, amend. 7 (emphasis added).
The majority opinion acknowledges that Amendment 7 “does contemplate filing the initiative petition with the requisite signatures with the Secretary of State for a sufficiency determination,” but then it proceeds to suggest that Amendment 7 does not preclude “an earlier review of the text of the popular name and ballot title or the validity of the proposed amendment.” This suggestion is, however, not borne out by the provisions of Amendment 7. The secretary of state’s authority to act under Amendment 7 is not triggered until a statewide initiative petition is “filed with the Secretary of State not less that four months before the election at which [it is] to be voted upon . . . .” Ark. Const, amend. 7. Moreover, “at the time of fifing” the ballot tide must be submitted with the petition. Id. Our jurisdiction to entertain an original action under Amendment 7 does not arise until the secretary of state decides on “[t]he sufficiency of all State-wide petitions.” Id.
In upholding this court’s jurisdiction to review the secretary of state’s declaration on the “legal sufficiency” of a measure pursuant to Act 877 of 1999, the majority assumes that the word “petition” as used in Amendment 7 may be interpreted to mean merely the text of the proposed measure, and the proposed popular name and ballot title. Such an interpretation makes absolutely no sense because it would mean that “petitions” without the required number of signatures could be filed within four months of an election. Consequently, during the four months leading up to the election, the secretary of state might be required to decide, and this court might be asked to review, the “legal sufficiency” of measures that would probably not be on the ballot for that election. Such decisions would be purely advisory unless they were deemed binding beyond the election. In that event, the time fixed by Amendment 7 for filing initiative petitions would be rendered meaningless; that is, the gathering and filing of the required number of signatures for a “petition” already determined to be “legally sufficient” by the secretary of state and this court could extend over the course of several years. In short, the majority’s assumption regarding what is meant by the word “petition” in Amendment 7 is totally at odds with the amendment’s fundamental framework.
The word “petition” as used in Amendment 7 should be interpreted consistently throughout the amendment, whether it be in the context of the amendment’s filing requirements or in the context of sufficiency decisions by the secretary of state and this court. Such a consistent interpretation can only be achieved when a “petition” includes the text of the proposed measure and the proposed popular name and ballot title, and the required number of signatures. Our case law supports this view. In Dixon v. Hall, 210 Ark. 891, 198 S.W.2d 1002 (1946), we stated:
Our view is that, under any rational construction, it was intended that a petition be filed within the time fixed by Amendment No. 7. To be a petition it must, prima facie, contain at the time of filing the required number of signatures. Correction and amendment go to form and error, rather than complete failure.
Id. at 894, 198 S.W.2d at 1003 (emphasis added). See Walker v. McCuen, 318 Ark. 508, 886 S.W.2d 577 (1994); Casteel v. McCuen, 310 Ark. 568, 838 S.W.2d 364 (1992); Czech v. Munson, 280 Ark. 219, 656 S.W.2d 696 (1983); Ellis v. Hall, 219 Ark. 869, 245 S.W.2d 223 (1952) (per curiam) (Secretary of State authorized to allow a thirty-day extension for securing additional signatures where the petition as originally filed contained the required number of signatures, but investigation showed that 268 signatures were not valid). Furthermore, Amendment 7 provides that a petition may be circulated in “parts” to gather the number of signatures required. We have held that these “parts,” which are sometimes loosely referred to as “petitions,” are considered to be only one petition. Czech v. Baer, 283 Ark. 457, 677 S.W.2d 833 (1984). Likewise, in Scott v. McCuen, supra, we stated:
Our jurisdiction attaches only after the petition is declared sufficient and that determination must be of the sufficiency of both the title and the signatures.
Scott v. McCuen, 289 Ark. 41, 45, 709 S.W.2d 77, 79 (1986). This explicit statement of the limits of our jurisdiction under Amendment 7, which we followed four years later in Finn u McCuen, supra, clearly supports the view that a “petition” as that term is used in the amendment must contain at the time of filing the required number of signatures.
The majority attempts to support its holding on the constitutionality of Act 877 by citing our decision in Washburn v. Hall, 225 Ark. 868, 286 S.W.2d 494 (1956), for the proposition that “early review of the petition’s text by the attorney and by this court did not impede the Amendment 7 process.” It nonetheless acknowledges that our decision in that case “was not couched in terms of the jurisdiction of this court to review.” In fact, the Washburn case presents no more help in the resolution of this case than it did when this court decided Finn v. McCuen, supra:
The issue in the Washburn case was whether the refusal of the secretary of state to certify a referendum was proper in view of the fact that it had no popular name or ballot title. We were not concerned with the provisions in Act 195 for relief in this court in the event the attorney general refused to act. We only held that the secretary of state’s refusal to certify the petition was proper and that the provisions of Act 195 for involving the attorney general in the secretary of state’s decision as to the sufficiency of the petition was not a violation of Amendment 7. The case presents no help in the resolution of the case before us now. It certainly does not run contrary to our strong language and holding in the Scott case.
Finn v. McCuen, 303 Ark. 418, 425, 798 S.W.2d 34, 37 (1990).
All of the parties in this original action urge this court to approve Act 877’s mechanism for an early judicial review of the text of a popular name and ballot title and the validity, of the proposed measure before the secretary of state has certified the sufficiency of the signatures required by Amendment 7. Just as the parties did in Scott v. McCuen, supra, the parties here want an early ruling on the “legal sufficiency” of the proposed measure and the proposed popular name and ballot title before they spend time and money securing thousands of signatures and publicizing the proposition. The majority correctly points out that in 1994 we encouraged the General Assembly “to make another attempt to establish an initiative and referendum procedure that will permit early resolution of [ballot title] issues.” Page v. McCuen, 318 Ark. 342, 884 S.W.2d 951 (1994). The General Assembly responded in 1995 when it “tried to remedy this ballot title/popular name problem by a proposed Constitutional Amendment 3, but that proposed amendment was defeated at the November 5, 1996, General Election.” Stilley v. Priest, 340 Ark. 259, 12 S.W.3d 189 (2000) (per curiam).
In my view, the General Assembly’s action in 1995 reflects a recognition that the real impediment to an early review of ballot titles and proposed measures prior to the collection of signatures is in the actual language and framework of Amendment 7. Our authority to review an initiative petition cannot be invoked until a “petition” containing the required number of signatures is filed with the secretary of state and she declares it to be sufficient or insufficient according to the power vested in her by Amendment 7:
[T]he only authority given this court by Amendment 7 is the authority to review the secretary of state’s certification of a “petition” which includes both the ballot title and the signatures.
Finn v. McCuen, 303 Ark. 418, 425, 798 S.W.2d 34, 37 (1990).
While Amendment 7 provides that “laws may be enacted to facilitate its operation,” our original jurisdiction cannot be enlarged by the legislature. American Party v. Brandon, 253 Ark. 123, 484 S.W.2d 881 (1972). That is exacdy what section 4 of Act 877 of 1999 attempts to do. It purports to permit this court to review a “legal sufficiency” decision of the secretary of state with respect to a proposed measure and the ballot title portion of a petition. Pursuant to our holdings in Scott v. McCuen, supra, and Finn v. McCuen, supra, which should not be overturned, and the language of Amendment 7, I must conclude that section 4 of Act 877 constitutes nothing less than an unlawful and unconstitutional expansion of our jurisdiction.
The majority court’s decision, under the rubric of “facilitating a smoother operation of Amendment 7,” sanctions a legislative expansion of the court’s authority granted by Amendment 7 for the express purpose of allowing this court to review the secretary of state’s certification of something short of a “petition” containing both the ballot title and the signatures. As far as I can tell, this is the first time this court has ever reviewed a ballot title for a proposed measure before it has become a “petition” under Amendment 7 by the filing with the secretary of state of the required number of signatures.
For these reasons, I respectfully dissent.
THORNTON, J., joins in this dissent.
Other thorny questions may surface as a result of the majority’s sub silentio assumption about the meaning of the word “petition” as used in the amendment. For example, would the people’s right of referendum begin when the “petition” is filed or when the signatures are filed? See Walker v. McCuen, 318 Ark. 508, 886 S.W.2d 577 (1994). In determining the required number of signatures under Amendment 7, will the “last preceding general election” for the office of governor be the election before the filing of the “petition” or the election before the signatures are filed?
It should be noted that the Washburn petition filed with the secretary of state contained a sufficient number of signatures. Washburn v. Hall, supra.
Mr. Stilley notes that proposed Constitutional Amendment 3 also sought to increase the number of constitutional amendments that could be proposed or submitted at the same time by the General Assembly under Article 19, Section 22 of the Arkansas Constitution. | [
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RAY THORNTON, Justice.
Appellant, Donnie Bisbee, was charged icJune e. 1999, with one count of kidnapping, three counts of rape, and one count of residential burglary. These charges stemmed from the alleged abduction of a child on June 10, 1999. Having been convicted of four or more prior felonies, appellant was charged as a habitual offender. The law enforcement officials spoke with appellant about the abduction on the evening ofjune 11, 1999.
On August 4, 1999, appellant filed a motion to suppress those statements given to the law enforcement officials on June 11, 1999, arguing that his statements should be suppressed because they were not voluntarily given. Specifically, appellant argued that the statements should be excluded from evidence because: 1) appellant was threatened by officers and circumstances; and 2) he was under the influence of intoxicating drugs and did not know what he was doing.
On August 16, 1999, a hearing was held on appellant’s motion. At the hearing, appellant amended his motion to suppress. Appellant argued that his statements should be suppressed because the law enforcement officials interrogating him promised him a “Coke” and a cigarette in exchange for his statements.
Lieutenant Jerry Odom, an employee of the Saline County Sheriff’s Department testified at the hearing. He stated that he was assisting in locating a missing child on July 11, 1999. He also testified that appellant was a suspect in the kidnapping and that he was taken into custody. Lieutenant Odom also stated that as soon as he came into contact with appellant he “Mirandized him” and that appellant verbally and physically acknowledged that he understood his rights. He further testified that appellant waived his rights and answered Lieutenant Odom’s questions about the missing child. In response to Lieutenant Odom’s questions, appellant stated that he would tell the location of the child if he could have a “Coke” and a cigarette. Lieutenant Odom told appellant that he “would get him something to drink and a smoke as soon as we could locate the child.” Finally, Lieutenant Odom stated that after appellant gave a description of where the child could be located, he provided appellant with a “Coke” and a cigarette at the crime scene and again when appellant was taken to the criminal investigation division.
Detective Scottie Courtney with the Saline County Sheriff’s Department also testified at the hearing. He stated that he questioned appellant about the child-abduction case on June 11, 1999, after the missing child had been found. Detective Courtney further testified that he read appellant his Miranda rights prior to questioning him and that appellant verbally acknowledged that he understood his rights, signed the form acknowledging that he understood his rights, and immediately signed a waiver of those rights. Detective Courtney also stated, and the form signed by appellant and the two detectives acknowledged, that neither of the detectives questioning appellant coerced appellant or made any promises to him.
Additionally, Detective Shawn Garner of the criminal investigation division testified. He stated that appellant was not under the influence of drugs or alcohol during the July 11, 1999, interview. Detective Garner also testified that no promises were made to appellant and no coercion was used on appellant during the interview. However, he did note that he provided appellant with a “Coke” during the interrogation but was unable to give appellant a cigarette because neither he nor Detective Courtney smoked. He further stated that appellant had a G.E.D. and indicated that he could read and write. Detective Garner also noted that the entire interview lasted only eleven minutes.
In its order, filed August 23, 1999, the trial court denied appellant’s motion to suppress. The trial court found that appellant had voluntarily waived his rights before speaking to the law enforcement officials and that “based upon the totality of circumstances, that the defendant’s statement to the detectives was voluntary, and was not the product of any express or implied police coercion.”
On September 10, 1999, pursuant to Arkansas Rules of Criminal Procedure 24.3(b), the trial court accepted appellant’s conditional guilty plea. Appellant pleaded guilty to the offense of rape and acknowledged his status as a habitual offender. Appellant’s guilty plea was conditioned upon the State allowing him to appeal the trial court’s adverse ruling on his pretrial motion to suppress. Appellant was sentenced to life imprisonment. Appellant raises one point on appeal, and we affirm the trial court.
In his only point on appeal, appellant contends that the trial court erroneously denied his pretrial motion to suppress. Specifically, he argues, in his one and one-half page brief, that his statements were not voluntarily given because they were given as the result of a promise made by law enforcement officials to provide appellant with a “Coke” and a cigarette in exchange for his assistance.
The State bears the burden of proving by a preponderance of the evidence the voluntariness of an in-custodial confession. Davis v State, 275 Ark. 264, 630 S.W.2d 1 (1982). Any conflict in the testimony of different witnesses is for the trial court to resolve. Id. While we do not reverse the trial court’s finding unless it is clearly erroneous, we do make an independent determination based on the totality of circumstances, with all doubts resolved in favor of individual rights and safeguards, to determine whether the holding of the trial court was erroneous. Id.
A statement induced by a false promise of reward or leniency is not a voluntary statement. Clark v. State, 328 Ark. 501, 944 S.W.2d 533 (1997). For the statement to be involuntary the promise must have induced or influenced the confession. McDougald v. State, 295 Ark. 276, 748 S.W.2d 340 (1988). Additionally, we have held that where a defendant conceives a plan and bargains for its acceptance in return for what he then claims was wrongfully obtained, it is incumbent on him to show he was coaxed into giving a statement that was not true. Williams v. State, 281 Ark. 91, 663 S.W.2d 700 (1983)(supplemental opinion denying rehearing). We have explained that it is necessary for the defendant to show that the statement was untrue because the object of the rule is not to exclude a confession of truth, but to avoid the possibility of a confession of guilt from one who is in fact innocent. Id.
As with other aspects of voluntariness, we look at the totality of the circumstances. Conner v. State, 334 Ark. 457, 982 S.W.2d 655 (1998). The totality is subdivided into two main components: first, the statement of the officer, and second the vulnerability of the defendant. Davis, supra. We have articulated factors which we will look to in our determination of whether the defendant was vulnerable. Specifically, we have held that the factors to be considered in determining vulnerability include: 1) the age, education, and intelligence of the accused; 2) how long it took to obtain the statement; 3) the defendant’s experience, if any, with the criminal-justice system; and 4) the delay between the Miranda warnings and the confession. Conner, supra.
Applying the applicable rules to the present case, it is clear that the trial court’s findings were not erroneous. Here the promise was neither false nor an inducement of appellant’s statements. Appellant was not enticed by prospects of reward from those in authority. Appellant conceived the idea and initiated the agreement. Specifically, he proposed to offer assistance to the law enforcement officials in return for an assurance that he would receive a “Coke” and a cigarette. Nothing suggests the statements were extorted from appellant by false promises. Appellant makes no claim that his statements were false, or that he was misled by the law enforcement officials. In fact, the State complied with appellant’s requests. After helping the law enforcement officials locate the missing child, appellant was given three “Cokes” and two cigarettes. Moreover, we note that the facts surrounding the giving of his statements to law enforcement officials are substantially similar to those relating to the defendant’s confession in Williams v. State, 281 Ark. 91, 663 S.W.2d 700 (1983). In that case, we held that a criminal defendant’s statement was not improperly induced by law enforcement officials. Specifically, we held, in our supplemental opinion denying rehearing, that:
When all the factors are considered, we conclude that the confession was voluntarily given: 1) appellant had not been subjected to lengthy interrogation, he was questioned briefly on May 8 and not again until he requested the meeting of May 14; 2) appellant was not without counsel, he had a lawyer, evidently retained, though he chose to meet without him; 3) the Miranda warnings were repeatedly read to appellant; 4) it was appellant who conceived and proposed that he give a statement in exchange for a charge of first degree murder, 5) at the time the agreement was reached appellant had not been charged in the Green murder, he was at most a suspect; 6) the agreement was not reached with the police, who are sometimes accused of overstepping the strict restraints of the law, but with a seasoned deputy prosecutor of more than twenty years affiliation with the office; 7) appellant did not mistakenly rely to his detriment 'on a false promise, the State kept the bargain and appellant benefitted by it; 8) finally, and notably, appellant does not claim he was lured by the hope of reward into giving a false statement, thus, the truth of the statement he gave under oath to the deputy prosecutor remains utterly unchallenged by him.
When the case law applicable to these facts is examined we think it has been correctly applied and the confession was properly admitted. The fact that it was appellant who initiated the proposal is a key factor and one which has been seen by many courts as significandy different from the opposing situation, where the state initiates the proposal and uses it to beguile the suspect.
Williams, supra (emphasis added). Turning to the facts surrounding appellant’s statements, we note that: 1) the length of the appellant’s interrogation was only eleven minutes; 2) appellant was read his Miranda rights several times prior to the giving of his statements and chose to waive his right to an attorney on each occasion; 3) it was appellant who conceived and proposed that he assist the law enforcement officials in exchange for a “Coke “ and a cigarette; 4) appellant did not mistakenly rely to his detriment on a false promise; 5) appellant was not particularly vulnerable in that he was twenty-four years old at the time of the interview, could read and write, had a G.E.D., was in control of his mental faculties, and was not a stranger to the criminal-justice system, having been convicted of at least four prior felonies; and 6) appellant did not assert that he was lured by hope of reward into giving false statements.
We further note that appellant argues that based on our holding in Sanders v. State, 305 Ark. 112, 805 S.W.2d 953 (1991) we must conclude that his statements should have been suppressed. Because the facts in Sanders are inapposite to the case now on review, we cannot agree with appellant. Therefore, we conclude that based on the totality of the circumstance, appellant’s statements were voluntarily given and that the trial court did not err in denying appellant’s motion to suppress. Accordingly, the trial court is affirmed.
4-3(h) Review
In compliance with Ark. Sup. Ct. R. 4-3 (h), the record has been examined for all objections, motions, and requests made by either party that were decided adversely to appellant, and no error has been found.
Affirmed. | [
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PER CURIAM.
WENCO Franchise Management, Inc., d/b/ . Wendy’s, seeks a writ of prohibition to the St. Francis County Circuit Court on the ground that the Workers’ Compensation Commission has exclusive jurisdiction of this case. The pleadings reflect that on May 8, 1996, Donna Chamness, an employee of WENCO, injured her back when she slipped and fell at the Forrest City Wendy’s restaurant. Chamness’s injury was accepted as compensable, and she received benefits. When Chamness later sought additional benefits, WENCO responded by arguing that Chamness was not performing employment services at the time of her accident. A hearing was scheduled before the Commission, but was later canceled at Chamness’s request.
Chamness then filed a negligence suit against WENCO in circuit court. WENCO filed a motion for summary judgment, asserting that Chamness’s exclusive remedy for her injury is under the Workers’ Compensation Act. WENCO asserted further that only the Commission has the authority to determine jurisdiction in this matter. The circuit court denied summary judgment, and WENCO petitioned this court for a writ of prohibition.
The case of VanWagoner v. Beverly Enters., 334 Ark. 12, 970 S.W.2d 810 (1998) is controlling. There, the claimant was employed by Beverly when she tripped and fell on a rug at her place of employment. She filed a claim for benefits under the Act. Beverly denied the claim. A hearing was scheduled before the Commission on the issue of compensability. The claimant later canceled the hearing and filed suit against Beverly in circuit court. The circuit court dismissed the suit with prejudice, and the claimant appealed. This court affirmed the circuit court’s ruling on the ground that the Commission has exclusive jurisdiction to determine the applicability of the workers’ compensation laws. This court stated:
We hold that the exclusive remedy of an employee or her representative on account of injury or death arising out of and in the course of her employment is a claim for compensation under § 11-9-105, and that the commission has exclusive, original jurisdiction to determine the facts that establish jurisdiction, unless the facts are so one-sided that the issue is no longer one of fact but one of law, such as an intentional tort.
Id. at 16, 970 S.W.2d at 812 (citations omitted) (emphasis added). WENCO relies on this holding in support of its petition.
Prohibition is an extraordinary writ that is appropriate only when the lower court is wholly without jurisdiction. Nucor Holding Corp. v. Rinkines, 326 Ark. 217, 931 S.W.2d 426 (1996). Where it is clear that the lower court is encroaching on the Commission’s jurisdiction, we will grant the writ. Id. In the present case, there is no dispute that Chamness was employed by WENCO at the time of the injury or that the injury occurred on WENCO’s premises. Nor is it disputed that Chamness has already received workers’ compensation benefits for her injury. Furthermore, it is not alleged by Chamness that her injury resulted from an intentional tort by WENCO. Accordingly, the Commission has exclusive authority to determine the facts that establish jurisdiction in this matter. We thus grant the writ of prohibition. | [
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ROBERT L. Brown, Justice.
This is a one-brief appeal brought icby e. appellants, C.L. and L.L. Their sole point on appeal is that the trial court erred in holding that L.L. could not be a petitioner for the adoption of D.J.L. unless she relinquished all of her rights and responsibilities as a natural parent of the child. We affirm the trial court but do so on the basis that the appellants have failed to abstract material parts of the record and further have failed to develop the legal issue raised.
The appellants’ abstract of the record in this adoption matter consists of one and a half pages. All that is presented to this court in the way of pleadings and proof is the following abstract of the adoption petition: “C.L. and L.L. wish to adopt D.J.L., an infant. L.L. is the natural mother of said child.” There is then a citation in the abstract of the brief in support of the petition to Ark. Code Ann. § 9-9-204 (Repl. 1998). The Addendum to appellants’ brief contains a letter opinion from the trial court and the order denying the petition. In its letter opinion, the trial court bases its denial on Ark. Code Ann. § 9-9-215(a)(l) (Repl. 1998), and the failure of the natural mother to relinquish her rights in the child prior to petitioning for adoption.
As an initial matter, we are provided no information concerning the natural father and his consent to the adoption. Under certain circumstances, the natural father must consent. Ark. Code Ann. § 9-9-206(a)(2) (Repl. 1998). However, if the natural father has deserted or abandoned the child or relinquished his consent, consent is not required. Ark. Code Ann. § 9-9-207 (a) (Repl. 1998). There is also nothing in the abstract to indicate whether notice of a hearing on the adoption was given to the natural father or whether a hearing was ever held.
Nor do we know from the abstract the age of the person to be adopted or whether the trial court dispensed with the child’s consent. Ark. Code Ann. § 9-9-206(a)(5) (Repl. 1998). We further are not provided information relating to the marital status of L.L. and C.L. or their genders or their county of residence.
Our rules are clear that the appellants’ abstract must provide an impartial condensation of material parts of the record in order to give this court an understanding of the case so that it can make a decision. Ark. Sup. Ct. R. 4-2(a)(6). Our Supreme Court Rules are also clear that if this court finds the appellants’ abstract to be flagrantly deficient, we may affirm the trial court for failure to comply with our rules. Ark. Sup. Ct. R. 4-2(b)(3). Because there are seven justices on the court, we rely on the abstract and will not examine a single record to ascertain the material facts in a case. Winters v Elders, 324 Ark. 246, 920 S.W.2d 833 (1996). There is no doubt that the abstract in this case is flagrantly deficient, and we affirm on that basis.
In addition to the abstract deficiency, the appellants have asserted in their three-page brief that because our statutes provide that an unmarried adult may adopt a child under Ark. Code Ann. § 9-9-204(2) (Repl. 1998), it stands to reason that two unmarried adults should also have the ability to adopt. However, they cite us to no authority in support of their theory of the case. Absent citation to authority or the rendition of convincing argument, we do not reverse. Robinson v. Langdon, 333 Ark. 662, 970 S.W.2d 292 (1998); Dixon v. State, 260 Ark. 857, 545 S.W.2d 606 (1977). Failure to develop the legal issue presents a second reason to affirm.
Affirmed.
The appellants argue in their brief that an adoption by two unmarried adults is permissible, but nothing in their abstract denotes their marital status. | [
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Robert L. Brown, Justice.
The appellants, SEECO, Inc. stice. Western Gas Company (AWG), and Southwestern Energy Company (SWN) appeal an adverse jury verdict and judgment which awarded the class of royalty owners $62,136,827 in compensatory damages and $31,085,330 in prejudgment interest for a total award of $93,222,157. The appellants raise sixteen issues on appeal. We find no reversible error in the issues raised, and we affirm the judgment.
This is the fourth appeal to come before us in this case. In SEECO, Inc. v. Hales, 330 Ark. 402, 954 S.W.2d 234 (1997) (SEECO I), we affirmed the certification of a class of royalty owners in litigation brought against appellants SEECO, AWG, and SWN. In SEECO, Inc. v. Hales, 334 Ark. 134, 969 S.W.2d 193 (1998) (SEECO, II), we affirmed the trial judge’s disqualification of co-counsel for SEECO, AWG, and SWN from participating in this case because he had announced his candidacy for the same judicial position held by the trial judge. In SEECO, Inc. v. Hales, 334 Ark. 307, 973 S.W.2d 818 (1998) (SEECO III), we affirmed the trial judge’s notice order to a subclass of royalty owners, which had the effect of permitting the trial to proceed as scheduled.
Appellants SEECO and AWG are wholly-owned subsidiaries of appellant SWN. Appellees are royalty owners by virtue of their oil and gas leases with SEECO and class representatives of approximately 7,000 lessors of oil and gas leases held by SEECO (“royalty owners”). SEECO is a gas producer and leases gas properties from the royalty owners. AWG is a public utility that buys gas from SEECO and in turn furnishes gas to its ratepayers. SWN is the holding company for its two affiliates, SEECO and AWG. At all relevant times, Charles Scharlau was the Chairman of the Board and CEO for the holding company and its two subsidiaries.
On July 24, 1978, SEECO and AWG entered into a 20-year contract for the sale of gas produced from leases held by SEECO, known as Contract 59. Pursuant to Contract 59, SEECO dedicated substantial gas reserves in Franklin, Johnson, Washington, Logan and Crawford Counties to AWG. In return, AWG promised to pay the market-value price throughout its 20-year term. The volume requirements set forth in the contract were intended to frilly deplete all of SEECO’s dedicated gas reserves by the end of Contract 59’s twenty-year term. The contract contained a take-or-pay obligation, which provided that AWG would buy a certain volume of gas at the contract price or pay a specified price without taking the gas. The pricing terms and other provisions of Contract 59 were approved by the Arkansas Public Service Commission (APSC) in 1979, and both SEECO and AWG confirmed to APSC that the two companies would be guided by the terms of the contract.
On December 10, 1984, AWG, by a letter from its Chairman of the Board and CEO, Charles Scharlau, to SEECO froze the price of gas purchased from SEECO at $3.85 per thousand cubic feet (Mcfi). On January 16, 1990, AWG filed an application with the APSC for approval of a general change in its rates and tariffs. On December 21, 1990, the APSC approved the overall revenue requirement and associated tariffs. However, the APSC expressed concern over AWG’s gas purchasing practices, its affiliate transactions with SEECO, its allocation of gas costs, and its transportation practices. The APSC initiated proceedings to address these issues, and following those proceedings, it issued Order No. 41 on November 29, 1993, in which it addressed the propriety of AWG’s contracting practices with SEECO. The APSC specifically noted that it must decide whether the market prices set in Contract 59 were reasonable so to allow them to be passed on to AWG’s ratepayers. In its Order No. 41, the APSC found that the relationship between SEECO and AWG was “fraught with conflicts of interest.” It further found that AWG was not in compliance with Ark. Code Ann. § 23-15-103 (1987), the least cost purchasing statute . The APSC ordered that for purposes of the cost of gas charged to its Arkansas ratepayers, AWG’s purchases from SEECO under Contract 59 must henceforth be indexed to an appropriate market price based on published prices. On October 31, 1994, AWG, SEECO, the APSC, the Arkansas Attorney General, and the Northwest Arkansas Gas Consumers entered into a Stipulation and Agreement whereby Contract 59 was amended to reflect the APSC’s findings in Order No. 41. The APSC published this stipulation in its Order No. 52 on January 5, 1995. As part of the Stipulation and Agreement, SEECO agreed to waive all take-or-pay pricing, buy-down demands, and other contractual claims arising under Contract 59 prior to July 1, 1994.
On May 24, 1996, Allen Hales and the other named appellees filed suit on behalf of themselves and other similarly situated royalty owners under SEECO gas leases, asserted numerous causes of action in contract and tort, and claimed royalty payments due from SEECO and not paid. Their claims arose out of SEECO’s administration of several contracts entered into between SEECO and AWG. The royalty owners later amended their complaint to focus solely on claims arising out of Contract 59.
In their complaint, the royalty owners alleged that throughout the term of Contract 59, SEECO never requested nor required AWG to pay the market price or take the volumes of gas set out under the express terms of the contract. The complaint also referred to the fact that in 1984, AWG froze the price of gas to be paid SEECO for gas produced and sold under Contract 59. The royalty owners asserted that this freeze violated the pricing provisions of Contract 59, and they contended that SEECO did nothing to contest the price freeze implemented by AWG. Because the price freeze was not to SEECO’s advantage, the royalty owners asserted that the freeze was only implemented to benefit AWG and significantly reduced the amount of royalty payments the royalty owners would receive under Contract 59.
The royalty owners further alleged causes of action in tort. As part of the fraud and constructive fraud claims, the complaint contended that in a 1983 letter, SEECO advised certain royalty owners that it had entered into a gas-sales contract with Natural Gas Pipeline (NGP) which would result in reduced royalties. The royalty owners claimed that SEECO failed to disclose that the same gas dedicated under the NGP contract was already dedicated under Contract 59, with its take-or-pay provision, at a significantly higher purchase price. In this same vein, the complaint asserted that in 1987, SEECO solicited the purchase of mineral interests from certain royalty owners and misrepresented the market price for natural gas. In the solicitation letter, SEECO noted that gas prices had been declining in recent years, but, according to the complaint, SEECO failed to disclose that under Contract 59, AWG was obligated to make minimum volume purchases of gas and to pay for that gas at a certain price as part of the arrangement for having the gas reserves dedicated for its use for twenty years. They further claimed that SEECO fraudulently concealed its failures under Contract 59 by intentionally refusing to document the pricing and other deficiencies under the contract and by failing to reveal Contract 59 pricing on check stubs and in the monthly royalty statements.
On June 13, 1996, SEECO, AWG, and SWN moved to dismiss the complaint, alleging that venue was improper in Sebastian County. On July 26, 1996, they filed a Motion to Disqualify the trial judge. In that second motion, they alleged that Judge Don Langston had a financial interest in the lawsuit, because he and his stepmother owned royalty interests under a lease in which SEECO owned an interest. That lease, according to the motion, was affected by Contract 269, which had been entered into by SEECO and AWG.
On August 1, 1996, the royalty owners filed an amended complaint. In the amended complaint, they removed all claims relating to Contract 269 in which the appellants maintained that the trial judge would be affected financially. After a hearing on the motion to disqualify, the judge denied the appellants’ motion. The court then entered a second order, finding that venue was proper in Sebastian County because the royalty owners had sufficiendy pled fraud.
On September 30, 1998, this case went to trial. Following a two-week trial, the jury returned a verdict in favor of the royalty owners and found that they had proven their claims for breach of the leases, deceit, constructive fraud, fraudulent concealment, interference with a contractual relationship, and civil conspiracy. The jury awarded damages of $62,136,827. The jury also found in special verdicts that SWN and AWG were alter egos of SEECO. The judge ordered appellants to pay the damages and prejudgment interest, for a total judgment of $93,222,157. After entry of judgment, the appellants filed a Motion for Judgment Notwithstanding the Verdict, and the motion was denied. On that same date, the trial judge entered a Rule 54(b) certification for appeal of this matter, retaining jurisdiction for the purpose of allocating damages among the class members.
I. Directed Verdict and JNOV Regarding Breach of Leases
a. Preservation of Issue.
The appellants first contend that the trial judge erred in denying their motion for a directed verdict on breach of the SEECO leases and the subsequent motion for judgment notwithstanding the verdict. The crux of the appellants’ argument is that (1) in 1993 the APSC, with its Order No. 41, determined that Contract 59 was administered by SEECO for the benefit of the holding company, SWN, and not for the benefit of its affiliate, AWG, and the utility’s ratepayers; and (2) the APSC determined that even the price freeze initiated by AWG in 1984, which exceeded the Contract 59 price, was too high under the least-cost purchasing statute.
In response, the royalty owners argue that the appellants failed to preserve any argument relating to the APSC in their motion for directed verdict at trial. In reviewing that motion made following the royalty owners’ case, we agree that there is no specific reference to the APSC’s role with respect to Contract 59. Nevertheless, much of the testimony presented by both the royalty owners and the appellants over the course of the two-week trial concerned the APSC’s proceedings and orders pertaining to Contract 59 and how that contract impacted the price of gas to AWG’s ratepayers. Without question, the appellants concentrated on the APSC proceedings and Orders No. 41 and 52 as a defense to any breach-of-lease claim by the royalty owners. In their motions for a directed verdict on the breach of the leases, the appellants argued that there was no evidence presented by the royalty owners that the lease terms were breached or in any way not complied with. The reason why there was no breach, according to the appellants’ theory of the case, is best illustrated by APSC’s endorsement of SEECO’s administration of Contract 59. We have no doubt that the trial judge was well aware of this aspect of the appellants’ defense, and he instructed the jury in Instruction 9 that it could consider the APSC rulings in deciding the case. We hold that the argument of no breach due to APSC’s role is sufficiently preserved.
b. Express Royalty Clauses.
Turning to the merits, the standard of review for the denial of a motion for a directed verdict is whether the jury’s verdict is supported by substantial evidence. Routh Wrecker Serv., Inc. v. Washington, 335 Ark. 232, 980 S.W.2d 240 (1998). In that case, we stated:
Substantial evidence is defined as “evidence of sufficient force and character to compel a conclusion one way or the other with reasonable certainty; it must force the mind to pass beyond suspicion or conjecture.” Esry v. Carden, 328 Ark. 153, 942 S.W.2d 846 (1997). When determining the sufficiency of the evidence, we review the evidence and all reasonable inferences arising therefrom in the light most favorable to the party on whose behalf judgment was entered. See Union Pacific R.R. Co. v. Sharp, supra. In such situations, the weight and value of testimony is a matter within the exclusive province of the jury. See id.
Id. at 238, 980 S.W.2d at 243. The same holds true for a motion for judgment notwithstanding the verdict (JNOV). A trial judge may enter a JNOV only if there is no substantial evidence to support the verdict and the moving party is entitled to judgment as a matter of law. Anselmo v. Tuck, 325 Ark. 211, 924 S.W.2d 798 (1996).
There were three kinds of gas leases involved in this case: (1) fixed-rate; (2) prevailing-market price; and (3) proceeds. The fixed-rate leases provided that the lessee would pay royalties to the lessor equal to one-eighth (1/8) of the value of gas sold calculated at a rate of three cents per Mcf. The prevailing-market-price leases provided that the lessee would pay royalties at the rate of one-eighth (1/8) of the value of such gas at the rate of prevailing-market prices. The proceeds leases provided that the lessee would pay royalties of one-eighth (1/8) of the proceeds received by the lessee for all gas produced from the leased premises. The appellants first contend that the royalty owners did not prove that SEECO breached the express royalty clauses in the market-price and proceeds leases by not obtaining maximum prices and “takes” under Contract 59. In particular, the appellants maintain that under the price-redetermination provision of the contract as well as the regulatory-out provision, there was no breach as a matter of law.
The relevant clauses of Contract 59 are set forth as follows:
Section 6: PRICE
(A) Subject to the other provisions hereof, including the following Subsection 6(C), Buyer shall pay to Seller the applicable price under the Contract Price Schedule for each Mcf of gas delivered to Buyer hereunder.
(C) Notwithstanding the above, it is understood and agreed that the price for gas delivered hereunder may be redetermined at the beginning of each Contract year with each such price redetermination to cover the gas delivered hereunder during the succeeding contract year. Prior to the expiration of the above-described Contract Year, Buyer or Seller may propose by written notice a contract price for the succeeding period in accordance with the below-described guideline and the information held by Buyer at that time. Upon such approval, the price for the Contract Year for which a redetermination is requested may be agreed upon by the parties, but in the absence of an agreed redetermination the parties shall make a price redetermination for such period in the following manner:
[This section was amended on May 21, 1979. The amended section is set forth here.]
The redetermined price shall be equal to the highest price being paid during any one of the 9th, 10th, or 11th months immediately preceding the accounting period for which redetermination is requested for gas then being purchased in Franklin, Johnson, Logan, Crawford, or Washington Counties, Arkansas, by any purchaser of gas in those counties during the Contract year immediately preceding the Contract year for which the redetermination is requested.
[The following section was also amended on May 21, 1979.]
Notwithstanding the above provisions, it is agreed that Buyer shall not pay Seller for any gas sold pursuant to this Contract more than the maximum lawful price for such gas as it may be classified under the provisions of the Natural Gas Policy Act of 1978.
(F) It is further provided that should Buyer at any time be prohibited by the Public Service APSC of Arkansas, ... or by any other federal or state legislative or regulatory action, from including the full amount of the applicable contract price provided for above in computing the cost of purchased gas adjustment to be applied to the rates charged Buyer’s customers, then Buyer may propose by written notice to Seller that the price to be paid to Seller hereunder shall thereafter be limited to that portion of the applicable contract price which Buyer is permitted to include for such purposes. . . .
The first issue that needs to be addressed is whether the findings by the APSC in Orders No. 41 and 52 have any bearing on this case, and if so, whether those orders decide the issue of breach as a matter of law. In the proceedings before the APSC in connection with AWG’s application for approval of a general change in rates and tariffs, SEECO took the following position on Contract 59, according to APSC Order No. 41:
Seeco witness Wilson prepared and introduced studies which calculate the monetary value of Contract 59 unasserted take-or-pay claims and pricing deficiencies that could have or could be asserted by Seeco against AWG. . . . The studies show that the total of Seeco’s unasserted take-or-pay claims, pricing deficiencies, and estimated buy-down value of Contract 59 is significantly in excess of $213 million. As explained in the testimony of AWG and Seeco witnesses Johnson, Buder and Scharlau, Seeco claims it knows of no Arkansas law requiring a gas purchaser to renegotiate a contract or demand unilateral concessions from a gas seller.
Seeco and AWG witnesses Butler and Wilson maintain that Seeco has accepted a price far below what it could have collected under Contract 59. They also testified that Seeco refrained from demanding a formal price redetermination and accepted a price freeze even though AWG had no market-out rights.
Seeco contends that its forbearance has benefitted AWG and its customers. Seeco states that, while it has foregone its rights under Contract 59 in order to compromise with AWG, its forbearance would be eliminated if AWG is unable or unwilling to keep its end of the bargain. Seeco asserts that Southwestern’s stockholders would have every reason and right to demand that the board of directors and management attempt to recoup any value lost as a result of Commission action with regard to Contract 59. Seeco contends that, although [APSC] Staff criticizes AWG for not conducting formal studies concerning takes from Contract 59, AWG management was well aware of the volume requirements under the contract and therefore the results of Seeco’s studies came as no surprise to AWG’s management.
The APSC concluded in Order No. 41 that the price level in Contract 59 violated the least-cost purchasing statute codified at § 23-15-103, because the price did not represent reasonable market pricing. The APSC stated that the current price under Contract 59 represented a major element in SEECO’s and SWN’s profitability, and that a significant conflict of interest existed between SEECO and AWG, because both subsidiaries of SWN were controlled by the same management. The APSC also found that the price of gas sold under Contract 59 should be determined by the current market, which would protect both the buyer’s and the seller’s interests. APSC Order No. 52 approved the Stipulation and Agreement that was entered into between the companies, the APSC, and the Attorney General on October 31, 1994, whereby SEECO gave up any claims it might have under Contract 59 prior to July 1, 1994.
The appellants’ core argument that APSC Orders 41 and 52 somehow control the issue of whether SEECO breached its leases with the royalty owners fails for several reasons. First, as the royalty owners aptly state, this is an appeal from a jury verdict and judgment, not an appeal from a regulatory order issued by the APSC. So while Orders No. 41 and 52 may have been relevant evidence at trial, the jury was free to place whatever weight it chose on these orders. Griffin v. Woodall, 319 Ark. 383, 892 S.W.2d 451 (1995). Second, the APSC is a regulatory agency established by the General Assembly to regulate public utilities. Its Orders No. 41 and 52 were concerned with the price that AWG was paying for gas and the effect of that price on its charge to' ratepayers. The interests of the royalty owners under Contract 59 were never advanced by SEECO, as an intervenor, or AWG before the APSC, and there was no reason that the APSC should have addressed their interests. In addition, the APSC had no jurisdiction over SEECO, because SEECO is not a public utility subject to regulation under Arkansas law. See Ark. Code Ann. § 23-1-101, § 23-2-301 (1987). Charles Scharlau admitted in his testimony'that the APSC had no direct authority to interfere with the Contract 59 price between SEECO and AWG. Had AWG and SEECO not been affiliated, SEECO would have not been before the APSC at all. Further, if AWG and SEECO had not been affiliated, SEECO would have had no interest or concern for AWG’s ratepayers. SEECO simply would have conducted its business in an effort to receive the price agreed upon in Contract 59.
Third, the position that the appellants take in this appeal is diametrically opposed-to the argument SEECO made to the APSC in 1992. At that time, SEECO claimed that it had consistently accepted a price far below what it could have claimed under Contract 59. Now it contends that because the APSC found the price under Contract 59 to be unreasonably high, that finding proves that SEECO did not breach the express royalty clauses in its leases with the royalty owners. As a final matter, Order No. 52 was issued on January 5, 1995, and was to be applied prospectively. Thus, it only altered AWG’s ability to pass through Contract 59 prices after that date and had no significance on the right of the royalty owners to enforce SEECO’s lease obligations for the fifteen-year period occurring prior to 1994.
We conclude that APSC Orders No. 41 and 52 do not provide a defense to the royalty owners’ claims for breach of leases as a matter of law. At the most, the orders presented evidence for the jury to resolve, and the jury resolved the issue of breach of the leases against the appellants.
On the appellants’ collateral point that the jury was erroneously instructed under Instruction 17 that the gas price under Contract 59 was a guaranteed price for the twenty-year period, we simply disagree that that is what Instruction 17 says. At issue here is what the market price means in a gas contract. This court said in Hillard v. Stephens, 276 Ark. 545, 637 S.W.2d 581 (1982), in discussing the meaning of “prevailing market price at the well,” that “when a producer’s lease calls for a royalty on gas based on the market price at the well and the producer enters into an arm’s-length, good faith gas purchase contract with the best price and terms available to the producer at the time, that price is the ’market price’ and will discharge the producer’s gas royalty obligation.” Id. at 551, 637 S.W.2d at 584. Thus, under Hillard, the contract price agreed to at the time the leases were entered into is the prevailing-market price.
The appellants argue that Hillard is inapplicable because it does not address how the contract price should be determined. They also argue, as noted above, that Hillard was used in this case to support Instruction 17, and that that instruction is misleading because it implies that the market price in Contract 59 could not be changed. Instruction 17 stated that the market value price is the contract price throughout the term of the contract. But that does not mean that the contract price was necessarily unchanging. Indeed, as quoted above and presented to the jury, Contract 59 included a procedure for redetermining the market price on a yearly basis. Additionally, both sides introduced evidence that the price under Contract 59 would change depending on the market. Instruction 17 appears entirely consistent with Hillard, and the evidence presented by the royalty owners was sufficient for the jury to find that SEECO accepted less than the market price over the term of Contract 59. The trial judge did not err in giving Instruction 17.
c. Implied Duty to Market Gas.
The appellants also claim that with respect to the gas leases SEECO had no implied duty to the royalty owners not to compromise or amend Contract 59. They support their position by citing this court to Amoco Prod. Co. v. Ware, 269 Ark. 313, 602 S.W.2d 620 (1980). They argue that it is true under Amoco that a producer must exercise reasonable diligence to market gas once it has been discovered on the leasehold and to secure the best possible contract price under prevailing market conditions. But, according to the appellants, this duty did not require SEECO to take action that would require the APSC to step in and regulate the price of gas charged to AWG and passed on to its ratepayers. Contract 59, they emphasize, contained such a regulatory-out clause that had the practical effect of subjecting SEECO to indirect APSC regulation of its prices. Because this sword of Damocles was hanging over SEECO, it made no sense under SEECO’s theory to enforce the market price set in Contract 59, when that price was higher than the 1984 freeze price which the APSC found violated the least-cost purchasing statute. In short, they argue that this court should be bound by the APSC’s determination on the implied-duty point as well. Again, we disagree.
At trial, the royalty owners called John McArthur as their expert witness who testified about the implied covenant to market. He testified that this implied covenant is an obligation on the part of the gas producer to get the best price possible for production. He explained further that if a lessee pays the royalty owner based on the proceeds he receives, that does not automatically satisfy the lessee’s duty to market, because if all the lessee had to do was pay whatever it received, it could enter into a contract for a good price but arbitrarily accept less. While the lessee would still pay the proceeds to the royalty owners, he testified that the lessee would not have satisfied its duty to get the best price.
McArthur also testified that as long as the contract was reasonable when entered into, the lessee could pay the contract price to the royalty owners and satisfy its duty to market. As long as the lessee made a reasonable decision at the outset, it would not be blamed for failing to forecast accurately where the market for gas would go. If the market failed after the contract was entered into, the lessee still would have to pay based on the contract, because the contract locked in whatever the price terms were subject to the right to redetermine pricing. Hence, according to McArthur, the lessee had an obligation to collect the contract price as part of its duty to get the best price possible for the royalty owners.
McArthur went on to testify that in his opinion, based on the APSC record and other documents in this case, AWG did not satisfy its contract obligations to SEECO under Contract 59. He noted that except for the first two-and-a-half months of the contract, AWG never paid the contract price. Instead, AWG paid a price that was lower than the contract price during the time the gas was regulated, and it paid below the contract price when the gas was deregulated. He added that he saw nothing in the record where SEECO complained to AWG that it was not paying the correct contract price. McArthur testified that in his opinion, SEECO had an obligation to the royalty owners to enforce the terms of Contract 59. He stated that when SEECO entered into the contract, it got a very favorable price and good take-or-pay terms. It then had an obligation to enforce those terms so that the royalty owners would get the benefit of the agreement to which their gas had been committed for twenty years. A second expert witness for the royalty owners, Don Ray George, confirmed McArthur’s opinions and calculated the damages from SEECO’s failure to enforce Contract 59.
This court has held that the weight and value to be given expert witnesses lies within the exclusive province of the jury, and it is the jury’s decision whether to believe or disbelieve any witness. Dixon Ticonderoga Co. v. Winburn Tile Mfg. Co, 324 Ark. 266, 920 S.W.2d 829 (1996). Clearly, the jury in this case accorded John McArthur’s and Don Ray George’s testimony more weight than the appellants’ witnesses, and this court will not disturb that finding on appeal. The appellants argue that McArthur’s testimony was merely conclusory, but we fail to see how that was the case. Once an expert witness is qualified, the weakness in the factual underpinning of the expert’s opinion may be developed on cross-examination, and such weakness goes to the weight and credibility of the expert’s testimony. Jackson v. Buchman, 338 Ark. 467, 996 S.W.2d 30 (1999). Here, McArthur’s testimony was based on the particular facts of the case. While he did reach certain conclusions, these conclusions were thoroughly explained with regard to the law and the facts surrounding this case.
The appellants also contend that the implied duty to market gas does not forbid them from amending Contract 59 as needed. Charles Scharlau, testified that he believed the parties did amend Contract 59 to reflect the lower price agreed to by SEECO, and that the 1984 price-freeze letter he sent on behalf of AWG to SEECO was intended to be an amendment to the contract. That letter from Scharlau stated:
It is my intention to freeze the price paid for your gas presently being purchased at the Section 102 price at the December, 1984 price for one year, this price will then be reviewed in December, 1985. We are proceeding in this manner due to today’s reduced gas markets and the reduction in the price of competitive fuels, in an effort to benefit our consumers.
McArthur addressed whether this constituted a redetermination of the gas price or whether the parties had amended the contract under Contact 59. He concluded that in his opinion, Contract 59 did not allow AWG to reduce the contract price by simply, sending a letter to that effect. He went on to say that “there is no economic-out clause in this contract, and that means that what is there are the price promises and the take or pay promises, and those are mandatory promises.”
We agree with this opinion. There is no language in Contract 59 which provides for an amendment of the Contract 59 price merely by a letter from AWG. While Contract 59 did allow for a price redetermination under paragraph 6(C), the contract states that the Buyer shall propose a price that will then be redetermined by both parties. In the 1984 price-freeze letter, AWG did not propose a new price, but simply stated what the new price would be. SEECO apparently did not play any role in redetermining the price, which means that the price-freeze letter cannot be considered a redetermination under 6(C) of Contract 59. As McArthur pointed out, the risk of market decline is one that AWG assumed in 1978, and it never shifted back to SEECO.
With respect to the regulatory-out clause contained in Contract 59, the clause effectively provided that the Contract 59 price could be reduced automatically to the price that the APSC would allow AWG to pass through to its ratepayers on pain of termination of the contract. It is clear to us that the purpose of this clause is to protect the ratepayers of a regulated entity such as AWG and would not be included in a contract to protect the royalty owners or producers like SEECO. In his testimony at trial, Charles Scharlau stated that he put the regulatory-out provision in Contract 59 to deal with the contingency where the APSC might rule that AWG could not pass the contract price through to its ratepayers. He stated further that a good number of utility companies use these clauses to protect themselves, if gas prices get out of control and they cannot pass the prices through to their customers.
The main flaw in appellants’ argument is that it is purely speculative. The regulatory-out clause in Contract 59 was never invoked by AWG due to any action taken by the APSC. McArthur testified that a regulatory-out clause protects a buyer like AWG from having to buy gas at an unreasonably high contract price. However, he stated that the APSC would have to actually intervene and prohibit the buyer from paying the full contract price. McArthur then testified that the buyer has to try to get the contract price changed, and if that is disallowed, then it can reduce the price.
McArthur then explained that even if the APSC had prohibited AWG from passing through the cost of gas to the ratepayers, that does not mean that AWG was required to pay SEECO less than the contract price. Under Contract 59, according to McArthur, if the APSC had disallowed some pass-through of costs, AWG might propose by written notice to SEECO that the price to be paid should thereafter be limited to that portion of the applicable contract price which AWG was permitted to include for such purposes. But there was nothing to prohibit AWG from paying the full contract price, even though it could only pass through to its ratepayers whatever portion of the price the APSC had allowed.
Though Scharlau’s testimony on behalf of AWG stated the case that SEECO’s enforcement of Contract 59 would have been to no avail because the APSC would have disallowed it, we are unwilling as a matter of law to adopt that position. We agree with the royalty owners’ experts that SEECO’s duty was to obtain the best price for itself and the lessors. We can only speculate as to what action the APSC might have taken had SEECO enforced its contract. There is simply no evidence that had SEECO elected to enforce the contract, the APSC would have prohibited pass-through of the prices to AWG’s ratepayers and, thus, allowed AWG to terminate the contract. And, of course, the affiliated relationship between SEECO and AWG raises additional questions about SEECO’s lack of enforcement. Charles Scharlau admitted at trial that the reason SEECO did not demand full performance from AWG under Contract 59 was due to the affiliate relationship between the two corporations. All of this was presented to the jury, and it obviously credited McArthur’s testimony over Scharlau’s. The jury awarded damages based on SEECO’s failure to enforce Contract 59. SEECO’s own expert, John Wilson, testified before the APSC in 1993 that SEECO’s unasserted claims under Contract 59 totaled $295 million. There is no basis for reversal on this point.
d. Prudent Operator Standard.
Next, the appellants argue that SEECO’s conduct in administering Contract 59 was prudent as a matter of law under the prudent operator standard. Much of their argument raises points already addressed. They contend that the expert testimony of John McArthur on this point was insufficient to establish a breach of the applicable standard of conduct, because his testimony failed to lay an adequate foundation with regard to what a prudent operator in SEECO’s circumstances would have done. They further contend that the proper comparison should have been to a prudent operator which was a party to a regulatory-approved, long-term contract with a regulatory-out clause, like Contract 59, which sold substantial volumes of gas to an affiliate, and which operated in the same or similar market and regulatory environment as SEECO. They maintain that McArthur simply substituted his own business judgment for SEECO’s, and only argued that SEECO should have demanded the prices and “takes” from AWG that allegedly were “guaranteed” by Contract 59.
To summarize, they contend that SEECO’s conduct was prudent in light of the APSC’s regulatory authority and that this court should give due deference to the findings and orders of the APSC and to SEECO’s business decisions. They maintain that the affiliate relationship between SEECO and AWG makes no difference in this case, because the APSC found that the affiliate relationship inured to the benefit of SWN and its shareholders, not to AWG’s ratepayers. Moreover, they state that the evidence was compelling that SEECO maintained a Contract 59 price well above other indicators of market value.
This point is substantially intertwined with the preceding point in that the prudent operator standard is the test for determining whether a lessee has breached any of the implied covenants, including the implied duty to market. In Amoco Prod. Co. v. Ware, supra, while this court did not specifically name the prudent operator standard as such, we said:
Amoco certainly had a duty to act for the mutual advantage of both Amoco and Ware. However, in determining if Amoco did perform in a reasonable and prudent manner, due deference should be given to the judgment of Amoco, as an Operator, regarding how development should proceed. Amoco had to use sound judgment and not act arbitrarily.
Id. at 319, 602 S.W.2d at 623.
In Robbins v. Chevron U.S.A., Inc., 785 P.2d 1010 (Kan. 1990), the Supreme Court of Kansas stated that the prudent operator standard is what an experienced operator of ordinary prudence would do under the same or similar circumstances, having due regard for the interests of both the lessor and the lessee. The court discussed the standard further:
It is not the place of courts, or lessors, to examine in hindsight the business decisions of a gas producer. One learned treatise on the subject, 5 Williams & Meyers, Oil and Gas Law § 856.3 (1989), states:
“The greatest possible leeway should be indulged the lessee in his decision about marketing gas, assuming no conflict of interest between lessor and lessee. Ordinarily, the interests of the lessor will coincide; the lessee will have everything to gain and nothing to lose by selling the product. ”
Id. at 1015 (emphasis added).
In our judgment, the jury in this case was required to judge the actions of SEECO at the time the contract was entered into in 1978 and to judge whether another operator in the same or similar circumstances at that time would have enforced the terms of Contract 59 against AWG. Again, this is an appeal from a jury verdict. Moreover, it is questionable under the Robbins decision whether this court should give any deference to the business judgment of SEECO. In Robbins, the Kansas Supreme Court stated that great leeway should be afforded a lessee in its decisions about marketing gas, assuming no conflict of interest between the lessor and lessee. There was a conflict of interest in this case because of SEECO’s affiliation with AWG. Had there been no affiliation, the jury was free to conclude that SEECO would have attempted to get the best price possible, thus benefitting the royalty owners.
John McArthur’s testimony is important on this point as well. He stated that in his opinion, SEECO did not act as a reasonably prudent operator in protecting the interest of the royalty owners. He testified that almost from the beginning, AWG paid less than the contract price. It ignored the redetermination formula and then froze the price. He added that from 1979 through 1994, except for two years, by John Wilson’s calculations AWG did not take-or-pay for enough gas. There is no indication anywhere, he said, that SEECO tried to make a claim on the contracts or enforce its contract rights or get the prices that it had been promised by AWG.
McArthur, contrary to the appellants’ assertion that his testimony was conclusory, supports his conclusions with specific references to documentary proof and relevant events. This proof constitutes substantial evidence to support the verdict, and the trial court did not err in denying appellants’ motion for directed verdict and their motion for judgment notwithstanding the verdict.
II. Directed Verdict and JNOV Regarding Tort Claims
The appellants next assert that the royalty owners failed to prove three elements of fraud and constructive fraud: (1) that the royalty owners relied on representations made to them by SEECO; (2) that SEECO had a duty of disclosure; and (3) that the royalty owners exercised due diligence to discover the terms of Contract 59. As an initial matter, the appellants contend that all of the royalty owners’ tort claims are dependant upon a contractually-based duty owed by SEECO under its leases. Thus, under the appellants’ reasoning, if the royalty owners had no duty owed to them that was breached under their leases, then there can be no basis for fraud claims as a matter of law. We disagree with this rationale. The royalty owners asserted different causes of action in contract and in tort and offered proof to support each cause of action. Additionally, the appellants cite no caselaw in support of their novel theory, and under such circumstances, we will not address the issue. Ellis v. Price, 337 Ark. 542, 990 S.W.2d 543 (1999).
The jury returned verdicts in favor of the royalty owners on the claims of fraud and deceit, constructive fraud, and fraudulent concealment. With respect to fraud and deceit, the royalty owners relied on a letter mailed by SEECO in 1983 to affected royalty owners, advising that SEECO had arranged for the sale of their gas to Natural Gas Pipeline of America (NGP). That letter, however, did not inform the royalty owners that the gas being sold to NGP was the same gas SEECO previously dedicated to AWG under Contract 59. In 1987, SEECO mailed a second letter to certain royalty owners offering to buy their mineral interests. This letter stated that gas prices had declined, but it, too, did not inform the royalty owners that Contract 59 protected them against market declines through July of 1998. In this regard, the royalty owners point out that SEECO represented that $0.80 per Mcf was a fair price, when the price under Contract 59 would have been as much as $7,645 and the price under AWG’s 1984 price freeze was $3.85 per Mcf. At trial, the royalty owners also offered proof that the monthly statements sent to them by SEECO did not disclose the Contract 59 prices and showed that the lower priced gas was designated as gas produced from oil wells, while the higher priced gas was designated as gas produced from gas wells. The truth, however, was that none of the gas produced from leased wells was gas from oil wells.
a. Reliance.
To establish fraud, a party must show as an element justifiable reliance on the false representation. Scollard v. Scollard, 329 Ark. 83, 947 S.W.2d 345 (1997); Wheeler Motor Co. v. Roth, 315 Ark. 318, 867 S.W.2d 446 (1993). This court has defined actual reliance to mean that the plaintiff acted or did not act by reason of the defendant’s misrepresentation. MFA Mut. Ins. Co. v. Keller, 274 Ark. 281, 623 S.W.2d 841 (1981). In the instant case, the 1983 and 1987 letters were mailed to a large number of the royalty owners. Those letters represented to appellees that they would receive a fair price for their royalty interest, and that SEECO was simply looking out for the best interests of the royalty owners. It is reasonable to conclude that, based on those letters, the royalty owners would believe that SEECO was working in their interest, particularly since that is what they were told. Class representatives Allen Hales and David Taylor testified that they had no reason to question any of the statements contained in the 1983 or 1987 letters. There was a failure to disclose the contract prices in these letters, but also the royalty check stubs and the monthly royalty statements were misleading. All of this was relied on by the royalty owners to their detriment. We conclude that this amounts to substantial evidence of reliance.
b. Duty to Disclose.
The appellants challenge the constructive fraud and fraudulent concealment verdicts by arguing that there was no confidential or special relationship between SEECO and the royalty owners to give rise to a duty to disclose. This issue was submitted to the jury under Instruction 19 relating to constructive fraud and under Instruction 21 relating to fraudulent concealment. The appellants did riot object to the existence of a confidential relationship in connection with either instruction, according to the abstract.
We have held that whether a confidential relationship exists is a question of fact for the trier of fact to decide. Donaldson v. Johnson, 235 Ark. 348, 359 S.W.2d 810 (1962); see also Marsh v. Nat’l Bank of Commerce, 37 Ark. App. 41, 822 S.W.2d 404 (1992). Because the jury returned verdicts for fraud, constructive fraud, and fraudulent concealment, we presume that it found that a confidential or special relationship did exist giving rise to a duty on the part of SEECO to speak and clarify misinformation upon which others might rely. Berkeley Pump Co. v. Reed-Joseph Land Co., 279 Ark. 384, 653 S.W.2d 128 (1983). Other jurisdictions have affirmed that a producer occupies a fiduciary relationship with respect to its royalty owners. See, e.g., Roberts Ranch Co. v. Exxon Corp., 43 F. Supp.2d 1252 (WD. Okla. 1997). Charles Scharlau testified that he agreed in 1991 that SEECO owed a fiduciary duty to its royalty owners and added that SEECO had always tried to act as a fiduciary towards them. That supports the jury’s verdict. We affirm on this issue.
c. Due Diligence.
The remaining issue involves whether there was a duty on the part of the royalty owners to be more diligent in discovering the facts surrounding Contract 59. As a preliminary matter, we question whether royalty owners should be required to scour the records of the APSC to meet the standard of due diligence. On this point, there was proof presented to the jury that SEECO and AWG successfully sealed the pertinent documents on file with APSC concerning SEECO’s failure to enforce Contract 59. Added to that is the fact that SEECO destroyed its royalty owner correspondence, after discovery began in this matter.
According to Instruction 21, the royalty owners were required to show that they coiild not have learned about the omitted facts relating to Contract 59 by reasonable inquiry or diligent observation. In their motion for directed verdict, the appellants argued that the royalty owners failed to meet this burden. The jury returned a special verdict finding fraudulent concealment. Hence, the jury disagreed with the appellants and found that the royalty owners did exercise due diligence. We discern no basis for reversing the jury’s determination.
d. Civil Conspiracy.
Nor do we believe that the civil conspiracy verdict fails under the intracorporate conspiracy doctrine, as the appellants contend. That doctrine has been applied primarily in the area of antitrust litigation and provides that a parent company and its wholly-owned subsidiaries cannot conspire with each other for purposes of § 1 of the Sherman Act. See, e.g., Copperweld Corp. v. Independence Tube Corp., 467 U.S. 752 (1984). The appellants’ contention that they acted independently of each other in Contract 59 concessions and in the price freeze seems at odds with their argument of an interdependent corporate family. It seems logical to us that if the corporate subsidiaries were separate enough to contract with each other, as the appellants maintain, they were sufficiently separate to engage in a civil conspiracy.
There is no merit to this point. Other appellate courts have declined to extend the intracorporate conspiracy doctrine to other areas. See, e.g., Stathos v. Bowden, 728 F.2d 15 (1st Cir. 1989) (refusal to apply it to a civil rights action); Ashland Oil, Inc. v. Arnett, 875 F.2d 1271 (7th Cir. 1989) (refusal to apply it to RICO actions). We likewise decline to apply it to this case.
e. Tortious Interference.
The appellants also urge that the tortious interference verdict regarding interference by SWN and AWG with SEECO’s leases with the royalty owners should be reversed because a parent cannot tortiously interfere with a wholly-owned subsidiary and there was insufficient evidence to prove the tort in any event. This argument is not preserved because the appellants’ counsel failed to present that particular theory to the trial judge. Ouachita Wilderness Inst. v. Mergen, 329 Ark. 405, 947 S.W.2d 780 (1997). We, therefore, decline to address it.
III. The Trial Judge’s Recusal
The appellants argue that Judge Langston improperly refused to recuse in this case even though he had an interest in royalty income under Contract 269 under a gas lease held by SEECO. They observe that Judge Langston based his decision not to recuse on the fact that the royalty owners only sought retrospective royalty payments and that the filing of the first amended complaint, omitting claims under Contract 269, rendered the recusal issue moot. They argue, however, that Judge Langston had a present financial interest in the outcome of the Contract 269 claim, and any damage award would have been paid to his father’s estate, and not to his stepmother, who retained a fife interest in the royalty interest payments. They argue that if Judge Langston’s stepmother died before payment of the judgment, his remainder interest would become a present interest.
Moreover, because a class action cannot be dismissed or compromised without the approval of the trial court, the appellants argue that permission of the judge must be acquired before class claims can be dismissed, even prior to class certification. Under the appellants’ theory, if court permission was required to file the first amended complaint, Judge Langston had no authority to make this ruling because he was already disqualified due to his financial inter est in the matter. Alternatively, the appellants argue that Judge Langston’s disqualification was not cured by the filing of the first amended complaint, because he had potential claims under Contract 269 for the same or similar conduct by SEECO in administering Contract 59, and his rulings and the outcome of the instant case would have precedential value in any separate class action involving Contract 269.
It appears to us that the appellants make the argument for the first time on appeal that any interest under Contract 269 would go to the estate of Judge Langston’s father rather than to his stepmother. It further appears that the argument relating to the precedential impact of Contract 59 litigation upon Contract 269 litigation was not made to the trial judge. Neither argument is preserved for our review. Ouachita Wilderness Inst. v. Mergen, supra.
We conclude that the appellants are wrong in their argument that the trial judge was disqualified from approving an amendment to the class-action complaint. Rule 23(e) does not require court approval for amendments to complaints but only for dismissals or compromises. Ark. R. Civ. P. 23(e). Neither occurred in this case. There simply was an amendment to the complaint prior to class certification.
Nor do we believe that Judge Langston had more than a de minimis economic interest in this matter causing his impartiality to reasonably be questioned. See Arkansas Code of Judicial Conduct, Canon 3E1(c). He disclaimed the gas interest affected by Contract 269 seven years before this litigation, and the royalty owners then removed Contract 269 from their complaint as a basis for relief.
It is true that judges must refrain from presiding over cases in which they might be interested and must avoid all appearance of bias. Arkansas Dep’t of Human Servs. v. R.P., 333 Ark. 516, 970 S.W.2d 225 (1998). But there is a presumption of impartiality, and the party seeking disqualification has the burden of proving otherwise. Sturgis v. Skokos, 335 Ark. 41, 977 S.W.2d 217 (1998). The decision to recuse is within the judge’s discretion and will not be reversed absent an abuse of that discretion. Id. An abuse of discretion can be proved by a showing of bias or prejudice on the part of the trial court. Id. A personal proprietary or pecuniary interest or one affecting the individual rights of the judge is an interest which will disqualify a judge; however, to be disqualifying, the prospective liability, gain, or relief to the judge must turn on the outcome of the suit. Id. The question of bias is usually confined to the conscience of the judge. Black v. Van Steenwyk, 333 Ark. 629, 970 S.W.2d 280 (1998). There was no proof presented that Judge Langston stood to gain or lose anything by this litigation. The trial judge committed no abuse of discretion in failing to recuse.
IV Venue
With respect to venue, the appellants urge that the real character of this litigation was a cause of action for breach of leases and not tort. See Bristol-Myers Squibb Co. v. Saline County Cir. Ct., 329 Ark. 357, 947 S.W.2d 12 (1997) (per curiam); Atkins Pickle v. Burrough-Uerling-Braswell, 275 Ark. 135, 628 S.W.2d 9 (1982). Thus, they maintain that under Ark. Code Ann. § 16-60-104 (1987), venue was only proper in Washington County where the three domestic corporations (SEECO, AWG, and SWN) had their principal offices. The trial judge, however, denied the appellants’ motion to dismiss for improper venue on the basis that the royalty owners brought a bona fide cause of action in fraud, and proper venue for a fraud action is in any county where a plaintiff resides. See Ark. Code Ann. § 16-60-113(b) (1987). Here, class representatives Allen and Mary Nelle Hayes resided in Sebastian County.
We find no error in the trial judge’s determination of venue. In SEECO I, this court determined that class certification was proper and stated that the issue of a fraudulent scheme was central to the case and a common starting point for all class members. Looking at the royalty owners’ complaint, there are numerous paragraphs devoted to allegations of fraudulent conduct on the part of appellants. Furthermore, when making his motion for directed verdict, counsel for the appellants began with the causes of action brought in tort and not breach of the leases. No reversible error is shown on this point.
V Second Closing Rebuttal
The appellants next claim that the trial judge committed reversible error by allowing counsel for the royalty owners to make a second closing argument to rebut prejudicial arguments made by counsel for the appellants. The events which form the setting for this unprecedented issue are these. In his closing argument at the end of the trial, counsel for the royalty owners, Oliver Howard, said:
What we are dealing with here is not the moral character of people. No individual has been sued in this case. The defendants in this case are AWG and SEECO and SWN. What we have tried to present to you is not moral character but the ways that people have acted, what they have done or not done, that was right or wrong as it related to the royalty owners. Reputation doesn’t make any difference.
In his closing argument counsel for appellants, Tom Mars, countered:
[LJawyers would call this a kill-the-company case. What Mr. Howard has asked you to do not only threatens the very existence of a company that’s been in business in northwest Arkansas since 1929, what he asks you to do threatens the previously untarnished reputation of Charles Scharlau and everybody who worked with him on the senior management team, to get the best price that they could get under Contract 59.
The evidence in this case shows that Charles Scharlau has been in this business for forty years and that he has earned a stellar reputation both in the Arkansas business community and in the gas industry across the nation.... And not once, not once, until this case was filed has anybody ever accused him of cheating people, treating people unfairly, breaching his obligations to people, or committing conspiracy to commit fraud.
Now, Mr. Howard began his closing argument by trying to down-play the significance of the fact that this case involves Charles Scharlau by telling you this case is about companies. But, remember what he told you in opening statement, he showed you this chart, right here, and he put Charles Scharlau right in the center of the chart, and since the first day of this trial, the plaintiffs have set their sights on Charles Scharlau as the ringleader of this vast conspiracy.
More than anybody else, Mr. Scharlau deserves your verdict. He deserves to leave this courtroom with the reputation that he walked in here with. He deserves to get this case over with and to retire with the same reputation, the same honor, and the same respect that he worked 40 years to achieve.
[H]e wants to see it through to the very end. He’s going to. And your verdict in this case should, it must, clear the defendants and Mr. Scharlau and the senior management team of this company of any wrongdoing whatsoever. What I mean to say, Members of the Jury, is that there is no room for compromise here. For you to find that the plaintiffs are entitled to one dollar, to say nothing of $62 million, would first require you by their theory of the case to find that Mr. Charles Scharlau, who has previously never been accused of being unfair to anybody, is guilty of conspiracy, fraud, breaching obligations to royalty owners and all other kinds of wrongdoing, that Mr. Howard has outlined in his closing remarks.
The plaintiffs have made this case all about Charles Scharlau. He didn’t deserve to go through this and neither did the other company people. He didn’t deserve to be accused of cheating these royalty owners. He didn’t deserve to be accused of conspiracy and fraud.
No objection was made by counsel for the royalty owners during this argument. The following morning, counsel for the royalty owners objected to the appellants’ closing argument and presented a third-party complaint filed in federal district court in 1995 in the case of SWN, et al. v. Vesta Energy Co., Case No. 94-5006 (WD. Ark.). In that case the third-party complaint had been filed against Charles Scharlau for fraud, misrepresentation, fraudulent inducement, breach of fiduciary duty, wrongful interference with prospective business, and conspiracy. Tom Mars was counsel for Scharlau in the Vesta Energy litigation. Counsel for the royalty owners argued to the trial judge that he did not object at the time of the Mars closing argument, because he was not certain that Mars’s statements were wrong, though his co-counsel had written him a note that she suspected Mars was misrepresenting the facts. After confirming the facts overnight, Howard stated that he immediately brought the matter to the attention of the court. Howard asked for a mistrial, but in the alternative asked for additional time to rebut the Mars closing argument. The court decided that Howard could present the matter to the jury, but refused to let the appellants present evidence that the case had settled for $6 million in what they contended was Scharlau’s favor.
Howard then began a rebuttal closing argument. Co-counsel for the appellants, John Everett, made an initial objection which was overruled, and after Howard began to describe the Vesta Energy complaint, this colloquy ensued:
Mr. EVERETT: Your Honor, what Mr. Howard just told the jury is not right about the defendants of that case. If he’s going to read it, he needs to read it right.
The COURT: Mr. Everett, I do not want to hear any comments from the defense on this particular matter in front of the jury.
Mr. Everett: Your Honor, I cannot object at all no matter what he says, is that what I’m —
The Court: That’s correct.
Mr. Everett: To understand?
The Court: That’s correct.
Howard then concluded:
Ladies and gentlemen, this federal complaint was sent under a sworn certificate of service to the attorney who represented Charles Scharlau. His name is Tom Mars. Representing the companies in that case in which all those allegations were made against Mr. Scharlau was Mr. Jeffrey Dangeau, as well as the firm of Everett and Mars.
Mr. Dangeau, Mr. Everett, Mr. Scharlau were here, present, when Mr. Mars was telling you falsehood after falsehood yesterday and not a one of them got up to correct it.
It’s time for this to stop.
My grandmother, who I loved dearly — I used to call her Mi-Ma. When I used to go to church ... I started preaching when I was 15 years old and she let me drive her old Buick. We’d go to church together on Sunday morning.
Mr. Everett: Your Honor, surely this is not rebuttal.
The Court: Be overruled.
Continuing By Mr. Howard:
She used to tell me a lot of things about her philosophy of life as we traveled down those county roads to Lamar and Pleasant Ridge and Atwood. And there were a couple of things that I always remembered that Mi-Ma taught me. She taught me that cheaters never win. There’s been times in my life where I don’t think I believed that, but as I am now 53 years old, cheaters don’t win. The other thing that she taught me, ladies and gentlemen ... She was a country girl from Arkansas. Grew up around Morrilton. She used to say — she called me “Little Oliver” because my granddad was named Oliver — “Little Oliver, you need to always remember, son, that what you do in life someday will come home to roost.” And I knew what her meaning was. It always catches up with you, doesn’t it? Well, folks, twenty years of cheating and lying and hiding and twisting the truth have just come home to roost.
I hope that the false statements made to you by Mr. Mars yesterday will not interfere with your ability to look at this intelligendy and soberly and earnestly.
You got more than you paid for, but you’re here and you’re here to do a job.
I’ll leave you with one last thought. I don’t know how all of this makes you feel, but it gets me in my gut. I worked three long, hard years to go to law school with a wife and three kids and a full-time preaching job because I wanted to make a difference, because I believed in our system of justice. There were tears in my eyes the day I took that oath to be an officer of the court, licensed to practice law before the Supreme Court of the State of Oklahoma. I had a firm belief that, as a lawyer, I could do good for people. And I’ve represented all kinds of people, great big corporations and litde bitty people, and there isn’t anybody that fights harder than I do because I am obligated to zealously stand up for and to prosecute the rights of my clients.
When I accepted the representation to represent these 7,000 people, it was an awesome responsibility. I haven’t met most of those people and I have a fiduciary duty to them. I want them to win because it’s the right thing to do, but I don’t want them to win because I’ve tricked you into giving us a verdict.
I stand about two inches shorter this morning than I did yesterday. What has happened here hurts deeply to people who practice this profession. It cuts to the quick of what we stand for and believe in.
Ladies and gentlemen, here it is. I ask you to look into your heart, to look into your soul, to make an honest and a good decision, faithfully discharging your obligations as jurors.
Thank you.
Mr. Everett: Your Honor, I move the Court for an opportunity to respond. I move the court for an opportunity to tell the jury how the underlying case came out.
The COURT: Mr. Everett, please, I’ve already ruled against you on this.
Again, this court views these developments at close of trial as unprecedented. But our task is to decide whether in attempting to correct the prejudice committed by Mars for the appellants, the trial judge permitted Howard for the royalty owners to go too far, thereby prejudicing the jury against the appellants. With the benefit of hindsight, several things might have been done differently. Howard for the royalty owners could have asked to approach the bench in a sidebar conference and announced his suspicions about the Mars argument during that argument. The trial judge could also have limited Howard to reading the Vesta Energy complaint without any additional commentary and argument.
We are mindful, however, of two things. This situation was brought about by the misrepresentation by Mars of Scharlau’s prior litigation. And this was a matter that Mars and Scharlau should have been well aware of, since Mars was counsel for Scharlau in the Vesta Energy matter. The second point of which we are assured is that a mere admonition to disregard Mars’s statement would not have cured the prejudice.
The trial judge, accordingly, was placed on the horns of a dilemma by the Mars argument. We cannot say, under these unique circumstances, that he abused his discretion in (1) allowing Howard to confirm the facts overnight before objecting, and (2) permitting Howard to read the allegations in the Vesta Energy com plaint and place that litigation into context for the benefit of the jury.
What is troublesome to this court, however, is that Howard did more than that in making an emotional appeal to the jury with the court’s blessing, and appellants’ counsel was called down for objecting to the argument. Again, was this so prejudicial as to warrant a new trial after two weeks of testimony or, more exactly, did the trial judge abuse his discretion in allowing this sequence of events to transpire?
We do not condone in any way the trial judge’s allowance of this emotional argument. But the issue, again, is whether the trial judge abused his discretion in allowing it. McGehee v. State, 338 Ark. 152, 992 S.W.2d 110 (1999). We have said that when we examine a discretionary decision by a trial judge, the question is not what we would have done, but whether as a matter of law discretion was abused. The question for us as an appellate court is: was the judge’s judgment call arbitrary or groundless? Looper v. Madison Guaranty Savings and Loan Ass’n, 292 Ark. 225, 729 S.W.2d 156 (1987). Though we do not approve in any form or fashion or endorse the procedure followed in this case to correct the error and prejudice initiated by counsel for the appellants, we cannot say that under these unique facts the judge’s decision was arbitrary or groundless.
VI. Miscellaneous Issues.
a. Individual proof of Reliance and Due Diligence for Fraud and Fraudulent Concealment Claims.
The appellants refer to SEECO I and contend that this court held that there should be individual trials for issues such as reliance and due diligence, and this did not occur. Rather, they claim that these issues were treated as common issues and were decided based solely on the testimony of class representatives Allen Hales and David Taylor. As a result, they maintain that essential elements of the class claims for fraud were presumed against them, contrary to this court’s mandate.
In SEECO I, this court said:
We hold that although the fact that lack of reliance and diligence may be arguments raised by the appellants, these challenges wih not override the common questions relating to the allegation of a scheme perpetrated by the appellants. The overarching issue which must be the starting point in the resolution of this matter relates to the existence of an alleged scheme. There was no abuse of discretion by the trial court.
As noted, this court has held repeatedly that real efficiency can be had if common, predominating questions of law or fact are first decided, with cases then splintering for the trial of individual issues, if necessary.
330 Ark. at 414-415, 954 S.W.2d at 241 (emphasis added).
We do not read this language as a mandate to hold separate trials for individual issues. Our opinion clearly states that the trial judge had the option of “splintering the trial of individual issues, if necessary.” In this case, the judge chose not to have separate trials due to the fact that the monthly royalty statements and royalty check stubs went to all royalty owners, and the 1983 and 1987 letters went to many of the lessors. None of these documents disclosed the Contract 59 gas price, and in the case of the monthly statements, they were misleading about the origin of the gas. There was no abuse of discretion on this point.
b. Evidence of Concessions by Other Producers.
The appellants claim that evidence showing that AWG received concessions from unaffiliated producers with regard to “market-outs,” well releases, price freezes, and reduced take-or-pay obligations from the 1980’s through 1992 was relevant and essential to SEECO’s defense that it acted prudently in agreeing to the same or similar concessions in the instant case. The appellants maintain that the trial judge abused his discretion by disallowing this evidence as irrelevant. We disagree.
On August 24, 1998, the royalty owners filed a motion in limine asking the trial judge to preclude the appellants from referring to or offering at trial evidence showing that unaffiliated gas producers accepted a price freeze or made other contract con cessions that were comparable to or more onerous than those SEECO accepted. The trial judge granted the motion based on Charles Scharlau’s deposition testimony that AWG had no contract for gas “comparable” to Contract 59. This court has held that the relevance of evidence is within the trial court’s sound discretion, subject to reversal only if an abuse of discretion is demonstrated. Arthur v. Zearley, 337 Ark. 125, 992 S.W.2d 67 (1999); Potlatch Corp. v. Missouri Pac. R.R. Co., 321 Ark. 314, 902 S.W.2d 217 (1995). The appellants cite us to Parker v. TXO Prod. Corp., 716 S.W.2d 644 (Tex. 1986), and emphasize that in Parker, the trial court affirmed the prudency of a gas producer’s contract with an affiliated buyer based in part on the fact that other unaffiliated sellers were accepting terms similar to those that the affiliated buyer offered. But the Parker decision does not address a challenge to the comparability of the evidence of other concessions. Thus, it is not instructive on this point.
Because Scharlau himself testified in deposition that Contract 59 was not comparable to other AWG contracts, the appellants’ contention here is effectively undermined. Scharlau confirmed this by testifying that AWG had to rely on its contract with SEECO for fifty percent of the gas it needed and that the underlying reserves and delivery system for Contract 59 fit the specific purpose of serving AWG’s markets and operational requirements. The trial judge did not abuse his discretion in denying the admission of other unaffiliated producer concessions into evidence.
c. Directed Verdict on Fixed-Rate Leases
The appellants urge that it was essential that the royalty owners establish a conversion of the fixed-rate leases into proceeds leases in order to recover damages for the fixed-rate lessors. This is so, they contend, because even if SEECO had received additional proceeds under Contract 59 from 1979 to 1994, there still would be no corresponding obligation to pay additional royalties to fixed-rate lessors under a fixed-rate lease. They argue that the only testimony concerning modification of the leases came from class representative, David Taylor, who testified that the payment and acceptance of proceeds under his fixed-rate lease was a “mutually consented action based on the course of conduct over a number of years.” They contend that the records only show a unilateral decision by SEECO to pay proceeds received on the fixed-rate leases for its own corporate purposes and not a mutual agreement between SEECO and the fixed-rate lessors to modify the leases. Hence, they conclude that the trial judge committed reversible error when he directed a verdict on this issue in favor of the plaintiff class.
We need not address the merits of this issue. Following the presentation of appellants’ case, the counsel for the royalty owners moved the judge to direct a verdict in their favor on the issue that the fixed-rate leases had been converted into proceeds leases by course of conduct of the parties. The trial judge granted the motion, and the appellants voiced no objection to either the motion or the ruling. It is axiomatic that the appellants should have objected to this motion at first opportunity. Edwards v. Stills, 335 Ark. 470, 984 S.W.2d 366 (1998). The appellants waived this issue at the trial level, and we will not address it for the first time on appeal.
d. Alter-Ego and Civil Conspiracy Instructions.
The appellants next argue that the royalty owners could not seek recovery on the inconsistent theories of civil conspiracy and alter-ego status. They add that none of the jury verdicts with the exception of civil conspiracy can be sustained without a finding that AWG and SWN were alter-egos of SEECO, or that SWN was the alter-ego of AWG in the case of tortious interference. According to the appellants, occupying the status of an alter-ego to another company is inherently at odds with entering into a conspiracy with that company.
The abstract and record reflect no objection to the jury verdict until the appellants filed their JNOV motion. This court has held that the time to object to an irregularity and inconsistency in the verdict is before the jury is discharged. P.A.M. Transp., Inc. v. Arkansas Blue Cross & Blue Shield, 315 Ark. 234, 868 S.W.2d 33 (1993). The purpose of this rule is to allow the trial court to resubmit an inconsistent verdict to the jury. Id. No timely objection was made. Plus, the record and abstract of the record reflect that the appellants made no objection to either Instruction 7 on alter-ego or Instruction 27 on civil conspiracy. This issue is not preserved for our review.
e. Statute of Limitations.
The appellants next contend that the statute of limitations for breach of the leases and for the various torts was never tolled, because the royalty owners failed to establish when the tolling of the limitations statute would have occurred. They further contend that damages under the implied-covenant-to-market claim accrued monthly from 1979 to 1994, as the under payments occurred. Hence, they conclude that damages are barred for all months prior to May, 1993.
There was no error in this regard. There was substantial evidence presented to the jury that the royalty owners claimed that their causes of action did not accrue until October 31, 1994 — the date of the Stipulation and Agreement in which SEECO waived and released AWG from all take-or-pay pricing, buydown, and other contractual claims under Contract 59. The royalty owners filed their complaint on May 24, 1996. We conclude that the statute of limitations began to run on October 31, 1994, and that the complaint was timely.
In addition, this court has often stated that a concealed fraud suspends the running of the statute of limitations, and the suspension remains in effect until the party having the cause of action discovers the fraud or should have discovered it by the exercise of reasonable diligence. Martin v. Arthur, 339 Ark. 149, 3 S.W.3d 68 (1999). The jury found fraudulent concealment in this case by a special verdict. On this point, we are again mindful that the appellants succeeded in putting John Wilson’s report that documented SEECO’s deficiencies regarding Contract 59 under seal to avoid providing a “road map” to the royalty owners for future litigation. Additionally, the trial judge gave a spoliation instruction (Instruction 10), after it determined that the appellants had intentionally destroyed the royalty owner correspondence files, after discovery commenced in this matter.
The jury’s conclusion that there was no limitations defense was reasonable. There was no reversible error on this point.
f. Damages for Breach of Take-Or-Pay Rights.
For their final point, the appellants vigorously contend that take-or-pay or other contract settlements are not royalty-bearing unless specifically tied to gas production. Therefore, damages awarded based on failure to honor take-or-pay obligations constitute reversible error.
The pertinent statute on this point reads:
It shall be the duty of both the lessee, or his assignee, and any pipeline company, corporation, or individual contracting for the purchase of oil or gas under any oil, gas, or mineral lease to protect the royalty of the lessor’s interest by paying to the lessor or his assignees the same price including premiums, steaming charges, and bonuses of whatsoever name for royalty oil or gas that is paid the operator or lessee under the lease for the working interest thereunder.
Ark. Code Ann. § 15-74-705 (Repl. 1994) (emphasis added). This court has not addressed this statute in the context of take-or-pay obligations, but in Klein v. Arkoma Prod. Co., 73 F.3d 779 (8th Cir. 1993), and Klein v. Jones, 980 F.2d 521 (8th Cir. 1992), the Eighth Circuit Court of Appeals allowed the royalty owners to share in a take-or-pay settlement made between the lessee and the natural gas pipeline that purchased the lessee. In doing so, the Eighth Circuit adopted the Harrell Rule. Under the Harrell Rule, oil and gas leases are construed in a manner so that the lessee and lessor split all economic benefits arising from those leases. The Eighth Circuit then held that the Harrell rule entitled the lessors to share in all proceeds, which meant that the royalty owners were entitled to receive a portion of the take-or-pay settlement.
The appellants argue that only two jurisdictions have held that take-or-pay settlements are royalty-bearing, the other jurisdiction being Louisiana. See Frey v. Amoco Prod. Co., 603 So.2d 166 (La. 1992). The vast majority of jurisdictions, they maintain, have held that take-or-pay settlements are not royalty bearing. While the appellants may be correct that most jurisdictions reject the Harrell Rule, the appellants do not address the fact that Arkansas has a statute, § 15-74-705, that appears to decide this issue. In their reply brief, the appellants counter that the statute refers “to premiums or bonuses” paid to an operator for royalties on gas that has been produced or sold. However, the statute does not specify that the gas has to have been produced or sold. It only states that the premiums or bonuses must be paid when any money is paid the lessee. It follows that if SEECO had received a settlement on the take-or-pay deficiencies, SEECO would have then been obligated to pay “to the lessor or his assignees the same price ... for royalty oil or gas that is paid the operator or lessee under the working lease thereunder” under the statute. Finally, Charles Scharlau, in his testimony before the APSC, admitted that under Klein I and II , royalty owners were entitled to share in buydowns as well as take- or-pay proceeds. He testified differently at trial, however.
There is no merit to the appellants’ argument in this regard.
Affirmed.
Special Associate Justice Noyl Houston joins.
Corbin, J. and Special Associate Justice Sam Laser concur.
Thornton and Smith, JJ., not participating.
In 1978, the public utility company known as Arkansas Western Gas Company reorganized into a holding company and changed its name to Southwestern Energy Company. The gas production business and leasehold interests were transferred to SEECO, Inc., and the public utility business was transferred to the re-named Arkansas Western Gas Company.
A “take-or-pay” clause is defined as a clause in a gas purchase contract which requires the purchaser to take, or faffing to take, to pay for the minimum annual contract volume of gas which the producer-seller has for delivery. Under this clause, the purchaser usually has the right to take the gas paid (but undelivered ) in succeeding years. Williams & Meyers, Manual of Oil and Gas Terms 976 (7th Ed. 1987).
That statute reads:
All gas lines or companies operating within the state who render a domestic or general service to the public in the furnishing and sale of gas are required to buy or furnish from the lowest or most advantageous market. Failure to do so shall deprive them of the difference in price between the market price and the price at which the purchase is made. Ark. Code Ann. § 23-15-103 (1987) | [
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PER CURIAM.
Petitioner, Marcus Threadgill, by his attorney, IAM. Gray, has filed a motion for rule on the clerk. His attorney admits that the record was tendered late due to a mistake on her part.
We find that such error, admittedly made by the attorney for a criminal defendant, is good cause to grant the motion. See Terry v. State, 272 Ark. 243, 613 S.W.2d 90 (1981); In Re: Belated Appeals in Criminal Cases, 265 Ark. 964 (1979) (per curiam).
A copy of this per curiam will be forwarded to the Committee on Professional Conduct. In Re: Belated Appeals in Criminal Cases, 265 Ark. 964. | [
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John E. Jennings, Judge.
Appellants, Gerhard and Nanett Wunderlich, appeal from an order setting aside the decree in which they adopted their granddaughter. For reversal, appellants contend that the trial court erred in setting aside the decree past the one-year period set out in Ark. Code Ann. § 9-9-216(b) (Repl. 2002); that the trial court’s finding of fraud is clearly erroneous; and that the trial court erred in proceeding without the child’s natural father because he was a necessary and indispensable party. We find no reversible error and affirm.
Appellee, Becky Alexander, gave birth to the child, W.W., on September 26, 1993, during her twenty-month marriage to William Roy Duncan. Becky and Mr. Duncan separated when WW. was six weeks old, and Becky and the child moved into the home of Becky’s mother and stepfather, the appellants Nan and Jerry Wunderlich. When Becky and Duncan divorced in July 1994, Becky was awarded custody of W.W., and Duncan was ordered to pay $200 a month in child support.
In April 1996, the Office of Child Support Enforcement filed a claim against Duncan for unpaid child support. In that action, Duncan filed a counterclaim seeking visitation with the child. Becky and Ms. Wunderlich visited with an attorney, and it was decided that appellants would adopt the child. It is undisputed that the sole reason this avenue was chosen was to extinguish Mr. Duncan’s parental rights and thereby prevent him from having any contact with the child. To that end, Becky signed a release in favor of Duncan in which she agreed to forgo collecting future child support in exchange for Duncan’s consent to the adoption. With Becky and Duncan’s consent, appellants adopted W.W. by decree dated July 30, 1996.
As before the adoption, Becky and W.W. continued to reside with appellants until June 1999 when Becky married Joe Alexander, at which time Becky and the child went to live with Mr. Alexander. Although the child lived with Becky and her husband, the child stayed with appellants most weekends. Becky and Mr. Alexander had a daughter of their own in the spring of 2000.
On April 27, 2001, the parties fell into disagreement over the payment of debts Becky had incurred for the purchase of property retained by appellants, and appellants thereafter refused to allow Becky to see the child. On June 8, 2001, Becky filed this petition to set aside the adoption decree on grounds of fraud. Appellants moved to dismiss the petition because it was filed outside the one-year limitations period for challenging adoptions, and they also moved to join Mr. Duncan as a necessary and indispensable party. After hearing testimony, the trial court denied appellants’ motion to dismiss and granted Becky’s petition to set aside the adoption.
Appellants’ first argument is that the trial court erred in setting aside the adoption after one year. Arkansas Code Annotated section 9-9-216(b) (Repl. 2002) sets out the limitations period for contesting adoptions and provides as follows:
(b) Subject to the disposition of an appeal, upon the expiration of one (1) year after an adoption decree is issued, the decree cannot be questioned by any person including the petitioner, in any manner upon any ground, including fraud, misrepresentation, failure to give any required notice, or lack of jurisdiction of the parties or of the subject matter unless, in the case of the adoption of a minor, the petitioner has not taken custody of the minor or, in the case of the adoption of an adult, the adult had no knowledge of the decree within the one-year period. [Emphasis added.]
At issue in this case is whether appellants had “taken custody” of the child so as to permit the adoption decree to be set a&ide beyond the one-year period. The question of whether adoptive parents have “taken custody” is one of fact. See Coker v. Child Support Enforcement Unit, 69 Ark. App. 293, 12 S.W.3d 669 (2000). The decision of a probate judge will not be disturbed unless it is clearly erroneous, giving due regard to the opportunity and superior position of the trial judge to determine the credibility of the witnesses. Cassat v. Hennis, 74 Ark. App. 226, 45 S.W.3d 866 (2001).
At the hearing, Becky testified that she and Duncan had divorced because he had a drinking problem and was abusive. She said that W.W. was two-and-a-half years old when Duncan filed the counterclaim requesting visitation and that the child had never seen him. She testified that they were all alarmed at the prospect of Duncan obtaining visitation with the child. Becky said that her first idea was to ask the child-support enforcement unit to drop its case against Duncan, but she said that appellants told her that the enforcement unit would not do that. She said that appellants brought up the idea of an adoption before she and Ms. Wunder-lich consulted with the attorney. Becky testified that she had not wanted an adoption and that she had expressed this to Ms. Wun-derlich at the attorney’s office. Becky testified that Ms. Wunder-lich told her that, “I promise, I will never take your daughter away from you. You will always be her mother. If you remarry, your husband can adopt her.” Becky said she agreed to the adoption based on her mother’s assurances. She described it as a “pretend adoption” and said that the adoption was not to change anything in terms of her being W.W.’s mother. She testified that, in fact, nothing did change. The child referred to Becky as “mommy,” and called appellants “papa” and “grandma.” She said that she and W.W. continued to share a bedroom in appellants’ home and that she attended to the child’s day-to-day needs and was her primary caretaker as she had been before the adoption. Becky testified that Ms. Wunderlich never told her what she could or could not do with the child and that she was in control of her daughter. She said that Ms. Wunderlich had advised the principal and teacher when they enrolled W.W. in kindergarten that Becky was the child’s mother and was responsible for her. Becky was listed as the child’s primary emergency contact at the school, and the child’s report cards were directed to and signed by Becky. Becky testified that she worked and contributed to the household expenses. She said that she paid for W.W.’s medical care except for the child’s tonsillectomy, which was covered by appellants’ insurance. Becky testified that it was not an issue for her to have taken W.W. with her when she remarried and that it was not even a topic of discussion.
Robin Gramly, Becky’s sister and Ms. Wunderlich’s daughter, testified that she had spoken with her mother about the adoption and that her mother told her that the adoption was “on paper only” and that it was strictly a way to keep Mr. Duncan from seeing W.W. Ms. Gramly also said that her mother assured her that the adoption would not change the relationship between Becky and the child and that the adoption would be reversed when Becky remarried or became financially stable. Gramly said that Becky was primarily responsible for the child both before and after the adoption and that there was never any question about whom W.W. would live with when Becky remarried.
Brenda Lee Stegeman, who was once married to Becky’s brother and Ms. Wunderlich’s son, testified that Ms. Wunderlich told her in reference to the adoption that “I’m the grandmother. Becky is the mother.” Ms. Wunderlich also told her that the adoption would be undone If Becky remarried or got on her feet financially. Ms. Stegeman said that Becky was always the child’s mother and that the adoption did not change the way the child was cared for.
Ms. Wunderlich testified that Becky was upset and asked for advice when Duncan filed the counterclaim for visitation. She accompanied Becky to a lawyer’s office, and she said that the lawyer told them that the adoption would be the best thing to do since Becky and the child already lived with them. She testified that the purpose of the adoption was to get Duncan out of the child’s life and that there was never an intent to take the child away from Becky. Ms. Wunderlich testified that she considered W.W. to be her grandchild after the adoption and that the adoption changed nothing in terms of how the child was cared for. She said that everyone in the community knew that W.W. was Becky’s child. Ms. Wunderlich agreed that she had explained to the school principal and teacher that Becky was W.W.’s mother, and she said that Becky was responsible for the child at school. She also testified that it was understood that W.W. would live with Becky wt(en she remarried. She said that, after Becky’s marriage, the child stayed with them most weekends when Becky had no other plans for her, and she agreed that Becky had control and that it was up to Becky whether they kept the child on weekends.
Based on these peculiar facts and circumstances, we believe the trial court could find that appellants had never taken custody of the child. Becky and W.W. had lived with appellants since the child was six weeks old, and they continued to live with appellants after the decree just as they had before the adoption. The testimony was clear that the parties’ respective relationships with the child did not change with the adoption and that appellants did not consider W.W. to be their child or hold the child out to be their own in the community. It is equahy clear that Becky and the child lived with appellants as a matter of convenience and familial affection and that they remained in appellants’ home after the adoption for those same reasons and not because appellants required them to do so. Indeed, there was no question but that Becky would take the child to live with her and her husband when she remarried. On this record, we cannot say that the trial court’s decision is clearly erroneous.
We are mindful that the commentary to the Uniform Revised Adoption Act states that § 9-9-216(b) is designed to impose a short statute of limitation on the ability to set aside an adoption decree in order to promote the policy of stability in a family relationship. See also Martin v. Martin, 316 Ark. 765, 875 S.W.2d. 819 (1994). We are not persuaded that the trial court’s ruling is inconsistent with this policy. The statute itself provides an exception to the one-year limitations period where the adoptive parents have not “taken custody” of the minor child. We hold only that, on these facts, the trial court’s finding on that issue is not clearly erroneous.
Appellants’ second issue is that the trial court’s finding of fraud is clearly erroneous. We disagree.
The fraud which entitles a party to impeach a judgment must be fraud extrinsic of the matter tried in the cause, and does not consist of any false or fraudulent act or testimony, the truth of which was or might have been in issue in the proceeding before the court which resulted in the judgment assailed. Parker v. Sims, 185 Ark. 1111, 51 S.W.2d 517 (1932). It must be a fraud practiced upon the court in the procurement of the judgment itself. Alexander v. Alexander, 217 Ark. 230, 229 S.W.2d 234 (1950). The party seeking to set aside the judgment has the burden of showing that the judgment was obtained by fraud, and the charge of fraud must be sustained by clear, strong, and satisfactory proof. First Nat’l Bank v. Higginbotham Funeral Serv., 36 Ark. App. 65, 818 S.W.2d 583 (1991). Here, there was testimony that the adoption was a sham, a “pretend adoption,” and one “on paper only.” It was not intended by the parties to sever the relationship between Becky and W.W. or to establish a parental relationship between appellants and the child. We cannot say the trial judge’s finding that a fraud was practiced on the court in procuring the decree is clearly erroneous.
Appellants’ last argument is that the trial court erred in proceeding without the natural father because he was a necessary and indispensable party to the action under Ark. R. Civ. P. 19 (2) (i). The order entered by the trial court does not reflect a ruling on that point. We will not review a matter on which the trial court has not ruled; and, a ruling should not be presumed. Vaughn v. State, 338 Ark. 220, 992 S.W.2d 785 (1999). The burden of obtaining a ruling on this issue was on the appellants, and the failure to do so, leaving the issue unresolved, operates as a waiver of the argument on appeal. St. Paul Fire & Marine Ins. Co. v. First Bank of Ark., 341 Ark. 851, 20 S.W.3d 372 (2000).
Affirmed.
Pittman, Bird, Griffen, and Roaf, JJ., agree.
Hart, Robbins, Neal, and Vaught, JJ., dissent. | [
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John E. Jennings, Judge.
John Magee was employed as the plant manager by U.S. Agricultural, Inc. His father, Allan Magee, and Ed Howard were co-owners.of the business. Allan Magee was the president, and Mr. Howard was the treasurer.
Appellant quit his job in June 2000. Some four months earlier he had increased his own salary from $590.00 a week to $670.00 a week. When Mr. Howard learned of this, he reduced appellant’s salary back to its former level. Appellant then quit.
Appellant filed a claim for unemployment benefits. The Board of Review denied the claim on a finding that appellant had failed to take appropriate steps to prevent the mistreatment from continuing. In an earlier decision, we held that this finding was not supported by substantial evidence and remanded the case to the Board with the direction that it determine whether the appellant had good cause to quit his work. See Magee v. Director, 75 Ark. App. 115, 55 S.W.3d 321 (2001). On remand the Board determined that appellant did not have good cause to quit work, and the appellant has once again appealed, contending that the Board’s decision is not supported by substantial evidence. We affirm.
“Good cause is a cause that would reasonably impel an average, able-bodied, qualified worker to give up his or her employment.” Garrett v. Director, 58 Ark. App. 7, 944 S.W.2d 865 (1997). We will affirm the Board’s decision on a question of fact if it is supported by substantial evidence. Rankin v. Director, 78 Ark. App. 174, 79 S.W.3d 885 (2002). Substantial evidence is such evidence as a reasonable mind might accept as adequate to support a conclusion. Walls v. Director, 74 Ark. App. 424, 49 S.W.3d 670 (2001). In the case at bar the Board of Review stated:
The general rule is that a substantial pay reduction gives an employee good cause for quitting. Yet, there is no set percentage or bright-line rule that makes a reduction in pay “substantial.” The weight of authority, however, appears to be that a reduction of over twenty percent is so substantial as to compel an employee to quit a job and have good cause to do so, but a reduction of less than twenty percent is not.
In this case, restoring the claimant’s salary to its previous level amounted to a reduction of approximately eleven-percent. The Board finds that this reduction is not substantial and does not constitute good cause for quitting the employment.
Although the Board reviewed a number of cases from other jurisdictions, it clearly recognized that there was no “bright-line rule.” The Board’s decision is therefore consistent with our statement in Price v. Everett, 2 Ark. App. 98, 616 S.W.2d 766 (1981), that “there is no talismanic percentage figure that separates a substantial reduction in salary from one that is not.” We are unwilling to hold that an eleven-percent reduction in salary, under the facts and circumstances of this case, constitutes good cause for quitting, as a matter of law.
As we discussed in our earlier opinion, there were additional problems between appellant and Mr. Howard relating to the ordering of supplies. On this issue the Board found:
As to the four examples the claimant offered concerning the Secretary-Treasurer’s refusal to pay, the requested repairs were ultimately made and the requested materials were ultimately purchased. The Secretary-Treasurer’s assertion that cash flow problems delayed the payment of the bills was not disputed and is a reasonable explanation concerning the delay.
The Board’s findings on this issue are supported by substantial evidence and are, therefore, conclusive. See Terry Dairy Products Co., Inc., v. Cash, 224 Ark. 576, 275 S.W.2d 12 (1955). For the reasons stated, the decision of the Board of Review is affirmed.
Affirmed.
Pittman, Robbins, Bird, Neal, and Vaught, JJ., agree.
Hart, Griffen, and Roaf, JJ., dissent. | [
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Olly Neal, Judge.
The appellant in this probate case was charged with theft by deception and acquitted by reason of mental disease or defect. She was consequently admitted to the State Hospital. Pursuant to Ark. Code Ann. § 5-2-314 (Repl. 1997), the State Hospital filed a report with the court recommending that appellant be released without conditions. The court disagreed with this recommendation and ordered that appellant be released with conditions. This appeal followed.
For reversal, appellant argues that she proved by a preponderance of the evidence that she should be released outright. She contends that “[absolutely no evidence was introduced that suggests that [she] could not be outright released.” We agree, and therefore, reverse and remand for entry of an order of unconditional release.
We review probate proceedings de novo, and the decision of the court will not be disturbed unless clearly erroneous. See Buchte v. State, 337 Ark. 591, 990 S.W.2d 539 (1999). A finding is clearly erroneous when, although there is evidence to support it, the appellate court after reviewing the entire evidence is left with the definite and firm conviction that a mistake has been committed. Kemp v. State, 348 Ark. 750, 74 S.W.3d 224 (2002). In making our review, we give due regard to the superior position and opportunity of the circuit court, sitting in probate, to determine the credibility of the witness. Manning v. State, 76 Ark. App. 91, 61 S.W.3d 910 (2001).
Arkansas Code Annotated section 5-2-314(e) (Repl. 1997) provides:
(e) A person found not guilty, on the ground of mental disease or defect, of an offense involving bodily injury to another person, or serious damage to the property of another, or involving a substantial risk of such injury or damage, has the burden of proving by clear and convincing evidence that his release would not create a substantial risk of bodily injury to another person or serious damage to property of another due to a present mental disease or defect. With respect to any other offense, the person has the burden of proof by a preponderance of the evidence.
The judgment of acquittal in this case provided that the offense at issue did not create a substantial risk of bodily injury to another person or serious damage to the property of another. Thus, appellant had the burden of proving by a preponderance of the evidence that her release would not create a substantial risk of bodily injury to another person or serious damage to property of another due to a present mental disease or defect. Arkansas Code Annotated section 5-2-315 (a)(2)(C) (Repl. 1997) provides further that:
(C) If, after the hearing, the court finds by the standard specified in § 5-2-314(e) that the person has recovered from his mental disease or defect to such an extent that:
(i) His release would no longer create a substantial risk of bodily injury to another person or serious damage to property of another, the court shall order that he be immediately discharged; or
(ii) His conditional release under a prescribed regimen of medical, psychiatric, or psychological care or treatment would no longer create a substantial risk of bodily injury to another person or serious damage to property of another, then the court shall order that he be conditionally discharged under a prescribed regimen of medical, psychiatric, or psychological care or treatment that has been prepared for him, that has been certified to the court as appropriate by the director of the facility in which he is committed, and that has been found by the court to be appropriate, and as explicit conditions of release. . . .
(Emphasis added.)
Following the testimony of Forensic Medical Director, Dr. O. Wendell Hall, that in his opinion, appellant, who suffers from bipolar disorder, could be released outright, the following colloquy took place:
Court: Well, here’s the story. I would be willing to grant the conditional release but you do not have any conditions attached here. And I’m not going to release her outright. She has a diagnosed mental illness. She committed a crime. She is homeless except apparently they have made arrangements for her to live at St. Francis House. She needs to be continuing to see the physicians at the Veterans Administration Hospital as well as the Mental Hygiene Clinic. So you may be conditionally released, but you don’t have the conditions done.
Defense Counsel: Your Honor, for the record, I’m asking that it be dismissed because that’s —
Court: I think I said already — if I didn’t — I already said that I’m not —■ I’m going to deny the outright release. It’s not going to happen . . .
We conclude that the decision of the trial court was clearly erroneous, as the record before us does not provide a basis for a conditional release. The Garland County Circuit Court, having acquitted appellant of the theft-by-deception charge for hot checks because of mental disease or defect and having before it the amount of the checks and the circumstances of the conduct, found that the crime did not create a substantial risk of bodily injury to another person or serious damage to the property of another. The judgment of the Garland County Circuit Court was before the Pulaski County Circuit Court, and there is nothing in this record that justifies setting aside that finding. Additionally, Arkansas Code Annotated section 5-2-315 (a)(2)(C) (Repl. 1997) provides that a person whose release would no longer create a substantial risk of bodily injury to another person or serious damage to property of another should be immediately discharged. Given the fact that the Garland County Circuit Court found that appellant’s crime did not create a substantial risk of bodily injury to another person or serious damage to the property of another, it is inconceivable that the Pulaski County Circuit Court could then find that appellant could not be unconditionally released when the crime from which she was acquitted did not involve a substantial risk of bodily injury to another person or serious damage to the property of another. Furthermore, there was no evidence before the trial court that appellant would present such a danger in the future. Therefore, we reverse and remand for entry of an order for appellant’s unconditional release.
Robbins, Vaught, and Roaf, JJ., agree.
Pittman and Bird, JJ., concur in part, dissent in part. | [
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Andree Layton Roaf, Judge.
William H. Hayes challenges the decision of the Arkansas Employment Security Department Board of Review, which denied his claim for unemployment benefits upon the finding that he voluntarily left his last work without good cause connected with the work pursuant to Ark. Code Ann. § 11-10-513 (Repl. 2002). Because we cannot discern from the record the connection with the State of Arkansas, and consequently, the jurisdictional basis for this claim, we remand to the Board for findings on this issue.
The record before us reflects that Hayes was employed by Labor All Personnel Services, a company that supplied workers to clients on a temporary basis. Labor All is located in Garland, Texas, and Hayes resided in Richardson or Dallas, Texas. At the time his claim arose, Hayes was on assignment to work at Flex-tronics, a company located in the Garland, Texas, area. According to Labor All’s testimony and documentation, Hayes failed to report back to their offices as required after his assignment with Flextronics ended; Hayes disputed this testimony and asserted that he reported by telephone and was instructed to do so by Labor All staff. The Agency found that Hayes was not disqualified from receiving benefits and Labor All appealed. The ALJ reversed and the Board affirmed the ALJ, finding that Hayes had voluntarily left his last work without good cause connected to the work.
Although we can find no case that has discussed the jurisdiction of the Arkansas Employment Security Department over unemployment claims arising out of employment in another state, it appears from the pertinent statutes that such jurisdiction must arise from a direct connection with either the employer or the employee/claimant, see Ark. Code Ann. §§ 11-10-207, 209, and 211 (Repl. 2002), or through reciprocal arrangements with other states and federal agencies where an employer performs services in more than one state or maintains a place of business in more than one state, see Ark. Code Ann. § 11-10-544 (Repl. 2002).
In this case Hayes apparently filed his initial claim for benefits at the Fort Smith office of the Employment Security Department. An agency log reflects that Hayes asserted by telephone to the agency on January 29, 2002, that he had been laid off by Labor All on October 19, 2001, and had to move “back to Arkansas” the week before Thanksgiving 2001 because of lack of employment. However, all documents in the record bear a Spiro, Oklahoma, address for Hayes, including the initial notice of agency determination mailed to Hayes from the Fort Smith office on January 30, ■ 2002, advising him that he was not disqualified for unemployment benefits.
Based on the record, we cannot discern whether Hayes ever resided in Arkansas. Consequently, we do not consider whether any such residence, if temporary, would confer jurisdiction on the Department pursuant to Ark. Code Ann. § 11-10-544 or otherwise. We remand to the Board of Review for further proceedings as may be necessary to make these determinations.
Remanded.
Vaught and Crabtree JJ., agree. | [
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Terry Crabtree, Judge.
In this paternity case, the biological father appeals the denial of his request for his child to bear his surname. For reversal, appellant contends that the trial court erred by failing to consider the factors set out in Huffman v. Fisher (Huffman I), 337 Ark. 58, 987 S.W.2d 269 (1999), and he argues that the trial court’s decision is otherwise clearly against the preponderance of the evidence. We reverse on the second point.
Appellant Kevin Dean Matthews and appellee Taja Lee Smith had a child out of wedlock born on December 20, 2000. The parties were engaged to be married when their son was conceived, but they did not marry. DNA test results completed in April 2001 revealed that appellant was the father of the child. On May 9, 2001, appellant filed a petition to establish paternity in which he requested that the child carry his surname. At the hearing held on November 8, 2001, the parties agreed by stipulation that appellant was the child’s father and that appellee was to retain custody of the child. The parties also agreed on a visitation schedule and the amount of child support appellant was to pay. The only issue litigated was whether the child’s surname should be changed from “Smith,” the name appellee acquired from a former marriage, to “Matthews,” appellant’s surname. The trial court ruled in favor of appellee, leaving the child with the name of Smith.
The law on this issue is settled. The best interest of the child is the dispositive consideration in determining whether a child’s surname should be changed. Carter v. Reddell, 75 Ark. App. 8, 52 S.W.3d 506 (2001). In determining the best interest of the child, the trial court is required to consider the following six factors set out in Huffman I, supra:
(1) the child’s preference;
(2) the effect of the change of the child’s surname on the preservation and development of the child’s relationship with each parent;
(3) the length of time the child has borne a given name;
(4) the degree of community respect associated with the present and proposed surnames;
(5) the difficulties, harassment, or embarrassment that the child may experience from bearing the present or proposed surname; and
(6) the existence of any parental misconduct or neglect.
Huffman I at 68, 987 S.W.2d at 274. The burden of proof is on the moving party to demonstrate that the name change is in -the best interest of the child. Huffman v. Fisher, (Huffman II), 343 Ark. 727, 38 S.W.3d 327 (2001). Where a full inquiry is made by the trial court with regard to the guiding factors and a determination is made with due regard to the best interest of the child, the trial court’s decision will be upheld where it is not clearly erroneous. Carter v. Reddell, supra. A finding is clearly erroneous when, although there is evidence to support the finding, the reviewing court, on the entire evidence, is left with a definite and firm con viction that a mistake has been made. Bell v. Wardell, 72 Ark. App. 94, 34 S.W.3d 745 (2000).
Appellant first argues that the trial court failed to apply the factors set out in Huffman I, supra. We find no merit in this argument. In its ruling, the trial court acknowledged that the primary consideration was the best interest of the child and that appellant bore the burden of proof. The court referred to the child’s young age, eleven months, and discussed the parties’ testimony, which focused almost entirely on their respective views as to the confusion the child might experience if his name were changed or remained the same. The trial court could only weigh the factors for which the parties provided evidence or that were relevant under the circumstances. Huffman II, supra. We cannot say that the trial court failed to consider the appropriate factors.
Appellant further argues that the trial court’s decision declining to change the child’s name is clearly erroneous. The parties were the only two witnesses at the hearing. In their testimony, it was disclosed that appellee had a four-year-old son born of her first marriage who carried the name “Smith,” and that appellee was engaged to Josh Wilson and that she anticipated taking his name when they married. Appellant also has another child, a son, who goes by the name of Matthews.
In his testimony, appellant said that, although he and appellee had stopped seeing each other before the child was born, he maintained contact with appellee on a regular basis during the pregnancy and provided financial support to her. He said that he accompanied her to the first doctor’s visit but was not allowed to attend any more appointments. Appellant testified that appellee had hinted that her former husband, Charles Smith, might be the father of the child. He said that they agreed, however, that paternity testing would be done after the child was born. Although his work often required him to be out of town, he was at the hospital when the child was born. He said that appellee had allowed him to visit the child an hour at a time when he was home. Appellant further testified that he wanted his son to carry his name and that he felt it would strengthen the bond between them. Appellant thought it would be confusing for the child not to have his name because the child would know him as his father. He also thought it would be confusing for the child to go by “Smith” since appel-lee’s ex-husband was not the child’s father. He also felt that the child would think it unusual if he did not have his own father’s name, while his half-brothers carried their fathers’ names. Appellant believed that it would be more clear to his son and appellee’s son if both boys had their own fathers’ names. Appellant also testified that he had family members who lived in the community and that his brothers and half-brother were Matthews.
Appellee testified that she objected to changing the child’s name because it would be confusing for her sons to be raised with different last names. She felt it would be better, particularly when they entered school or played sports, if their names were the same. She believed that, if their names were different, they would be put in the position of having to explain why this was so.
Name-change decisions are to be made on a case-by-case basis. Huffman II, supra. After reviewing this record, we are convinced that a mistake has been made and that it is in the child’s best interest for his name to be changed. As demonstrated by his actions, appellant has taken responsibility for his son and has shown his concern for the child’s well being and his intention to be involved in the child’s life. The only objection appellee had to changing the child’s name was her belief that it would be confusing for her sons to have different last names. However, under the circumstances, both boys will grow up knowing that they have different fathers, so we cannot see that their having different surnames will be confusing to them. We think that it would create added confusion for the child to have the name of Smith as it would lead others to believe that Smith was his father. With this child knowing appellant to be his father, we believe that it would be best for the child to carry appellant’s name and not the name of a man to whom he bears no relation. Therefore, we reverse and remand for the entry of an order to change the child’s name.
Reversed and remanded.
Pittman and Robbins, JJ., agree. | [
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John B. Robbins, Judge.
This is an appeal from a decision of the Arkansas Board of Review finding that appellant was disqualified to receive unemployment compensation because he was discharged from his last work for misconduct in connection with the work on account of dishonesty. We hold that there is no substantial evidence that supports the Board’s decision and reverse.
Appellant Michael L. King was hired on September 25, 2000, as a carpenter’s helper for appellee Pulaski County Special School District. Prior to being hired, Mr. King was asked on a questionnaire whether he had been convicted of any offense against the law, and he responded that he had not. In fact, Mr. King had pleaded guilty to conspiracy to deliver cocaine on June 24, 1995, for which he paid a fine and served two years’ probation. When his employer discovered this fact in February 2002, Mr. King was discharged.
In its opinion denying benefits, the Board acknowledges that Mr. King “believed, as part of his plea agreement, that he was not required to disclose his conviction pursuant to Act 346 of 1975 and that his public defender told him everything was taken care of.” However, the Board correctly notes that Mr. King’s criminal record was never expunged. Prior to 1995, a person convicted under the Youthful Offender Alternative Service Act of 1975 was not required to petition for expungement upon completion of his sentence; rather it was a ministerial duty to be completed by the Commissioner of the Department of Correction. See Irvin v. State, 301 Ark. 416, 784 S.W.2d 763 (1990). In 1995, the relevant statute was amended to read:
Upon fulfillment of the terms and conditions of probation or upon release by the court prior to the termination period thereof, the defendant shall be discharged without court adjudication of guilt, whereupon the court shall enter an appropriate order which shall effectively dismiss the case, discharge the defendant, and expunge the record, if consistent with the procedures established in § 16-90-901 et seq.
Ark. Code Ann. § 16-93-303(b) (Supp. 2001) (emphasis ours). Pursuant to the italicized language above, expungement is no longer automatic, and further proceedings after completion of an offender’s conditions are necessary. Mr. King was convicted after the 1995 amendment became effective and failed to take the necessary measures to have his record expunged. Thus, the Board found that his failure to disclose his conviction was a misrepresentation and constituted dishonesty.
Pursuant to Ark. Code Ann. § 11-10-514(b) (Repl. 2002), if the Board finds that a person is discharged for dishonesty, he is disqualified for benefits until he has ten weeks of employment, in each of which he shall have earned wages equal to at least his weekly benefit amount. On appeal to this court, we will affirm the Board’s findings if supported by substantial evidence. Yarbrough v. Director, 76 Ark. App. 231, 61 S.W.3d 922 (2001). Substantial evidence is such relevant evidence as a reasonable mind might accept as adequate to support a conclusion. Id.
In this case it is undisputed that when Mr. King represented that he had no criminal history his criminal record had not been expunged. But the issue is whether or not this misrepresentation constituted dishonesty. We hold that it did not.
In Olson v. Everett, Director, 8 Ark. App. 230, 650 S.W.2d 247 (1983), we defined dishonesty as “a disposition to lie, cheat or defraud; untrustworthiness; lack of integrity.” Id. at 231, 650 S.W.2d at 248. In this case Mr. King did not lie or commit any act putting his trustworthiness or integrity at issue. Arkansas Code Annotated section 16-90-902 (Supp. 2001) provides:
(a) An individual whose record has been expunged in accordance with the procedures established by this subchapter shall have all privileges and rights restored, shall be completely exonerated, and the record which has been expunged shall not affect any of his civil rights or liberties, unless otherwise specifically provided for by law.
(b) Upon the entry of the uniform order to seal records of an individual, the individual’s underlying conduct shall be deemed as a matter of law never to have occurred, and the individual may state that no such conduct ever occurred and that no such records exist.
Mr. King believed, albeit erroneously, that his record had been expunged and that he had been completely exonerated. Thus, he thought that he had the right to represent, on an application for employment, that he had never been convicted of a crime. Under these circumstances, there is no substantial evidence of dishonesty. A lie is “an assertion of something known or believed by the speaker to be untrue with intent to deceive.” Webster’s Ninth New Collegiate Dictionary 689 (1991). As Mr. King had a good-faith belief that his assertion was true and did not make it with the intent to deceive, we must reverse the Board’s decision denying benefits.
Reversed.
Vaught and Baker, JJ., agree. | [
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Olly Neal, Judge.
This is the second appeal in this case. The Garland County Circuit Court originally awarded appellee, C.W. Gillham, $1,500 in his suit against appellant, Wayne Buck, for conversion. In an unpublished opinion dated September 19, 2001, Buck v. Gillham, CA 00-1236, this court dismissed the appeal for lack of finality as the trial court had not ruled upon a third-party complaint filed by the appellant. The third-party complaint was nonsuited; thus, we now reach the merits of the appeal. Appellant argues that the trial court erred in finding him liable because the elements of conversion were not met in this case. We agree; therefore, we reverse.
The facts are as follows. Appellant owns a used car dealership in Glenwood, Arkansas. One week prior to the events that gave rise to this case, appellant sold a car to Charles Hunsucker. On July 5, 1997, Hunsucker returned to appellant’s car lot at around 5:30 p.m. and indicated that he wanted to purchase a 1992 Ford Ranger that day because he was moving. He represented to appellant that he had been approved for a loan by a local bank. They agreed that Hunsucker would buy the vehicle for $7,500 and would receive $1,500 trade-in value for the vehicle he had purchased from appellant one week earlier. Hunsucker would then pay the remaining $6,000.
Because it was a holiday weekend, appellant was in a rush to leave. He did not require Hunsucker to complete all of the paperwork or pay the remaining $6,000. Instead, they agreed that Hunsucker would receive the truck that evening and that appellant would keep the tide until Hunsucker paid the balance due. Hun-sucker was to go to the bank no later than the following Tuesday and return with the payment.
Appellant completed and signed a warranty form, an invoice, a transfer of tide, and an odometer disclosure statement. He completed these forms so that Hunsucker would be liable if he wrecked the vehicle before he paid the balance due on the vehicle. The invoice set forth the terms of the sale and had the words, “paid in full” written on it. When appellant went to retrieve the VIN number from Hunsucker’s trade-in vehicle, Hunsucker, without appellant’s knowledge, rummaged through appellant’s desk and pilfered the title to the truck. Upon his return, appellant gave Hunsucker the completed paperwork and Hunsucker left with the truck.
When Hunsucker failed to return and pay the unpaid balance, appellant reported the vehicle stolen. Shortly thereafter, the vehicle was located when another car dealer informed appellant that appellee, C.W. Gillham, a used car dealer in Hot Springs, had the truck. During his testimony, Gillham indicated that he did not intend to sell the truck and that he had purchased it for his son. He stated that he had purchased the truck from Hunsucker on July 8, 1997, for $1,500 and acknowledged that he was advised that he would have to either use his dealer tags or have either appellant or Hunsucker license the truck.
When appellant went to retrieve his truck, he explained to appellee that the truck had been stolen, but appellee claimed that he had the title and refused to return the truck. Prior to helping appellant retrieve the truck, the Garland County Sheriffs Office consulted with a Garland County prosecuting attorney. The prosecutor informed the sheriffs department that appellee should either return the truck to appellant or face prosecution for receiving stolen property. Appellee subsequently returned the truck, and appellant paid him for the value of work he performed on the vehicle’s brakes and tires.
Appellant ultimately sold the truck for 17,00o. Appellee brought suit against appellant for the tort of conversion, requesting $1,500. Appellant then filed a third-party complaint that has been nonsuited against Hunsucker for indemnification. The case was tried to the trial court without a jury. The court found appellant liable and rendered judgment against him for $1,500, stating in its letter opinion the following:
After considering the testimony and exhibits filed herein, I find in favor of the Plaintiff and award damages in the sum of $1,500.00. This decision is based on the facts that the defendant is responsible for giving Mr. Hunsucker most of the documentation necessary to demonstrate ownership of the vehicle in an effort to avoid any civil liability after he had delivered possession to Hun-sucker, that he was responsible, at least in part, for allowing Hun-sucker to steal the remaining documentation and also because he has received a $1,500.00 windfall.
This appeal followed.
When a case is tried by a circuit court sitting without a jury, our inquiry on appeal is not whether there is substantial evidence to support the factual findings of the court, but whether the findings are clearly erroneous, or clearly against the preponderance of the evidence. Springdale Winnelson Co. v. Rakes, 337 Ark. 154, 987 S.W.2d 690 (1999).
The general rule, as regards all personal property except money and negotiable paper, is that in the absence of limitations and estoppel, a purchaser from a thief acquires, no title against the true owner. Eureka Springs Sales Co. v. Ward, 226 Ark. 424, 290 S.W.2d 434 (1956); see Midway Auto Sales v. Clarkson, 71 Ark. App. 316, 29 S.W.3d 788 (2000). A person can be held liable to the true owner of stolen personal property for conversion notwithstanding that he or she acted in the utmost good faith and without knowledge of the true owner’s title. See Eureka Springs Sales Co. v. Ward, supra.
Conversion is a common-law tort action for the wrongful possession or disposition of another’s property. McQuillan v. Mercedes-Benz Credit Corp., 331 Ark. 242, 961 S.W.2d 729 (1998). The tort of conversion is committed when a party wrongfully commits a distinct act of dominion over the property of another which is inconsistent with the owner’s rights. Dillard v. Wade, 74 Ark. App. 38, 45 S.W.2d 848 (2001). The property interest may be shown by a possession or a present right to possession when the defendant cannot show a better right, since possession carries with it a presumption of ownership. Big A Warehouse Dist. v. Rye Auto Supply, 19 Ark. App. 286, 719 S.W.2d 716 (1986). The intent required is not conscious wrongdoing but rather an intent to exercise dominion or control over the goods that is in fact inconsistent with the plaintiffs rights. Grayson v. Bank of Little Rock, 334 Ark. 180, 971 S.W.2d 788 (1998); Tackett v. McDonald’s Corp., 68 Ark. App. 41, 3 S.W.3d 340 (1999). The conversion need not be a manual taking or for the defendant’s use. Big A Warehouse Dist. v. Rye Auto Supply, supra.
Ordinarily, the proper measure of damages for conversion of property is the market value of the property at the time and place of its conversion. McQuillan v. Mercedes-Benz Credit Corp., supra. Fair market value is defined as the price the personalty would bring between a willing seller and a willing buyer in the open market after negotiations. JAG Consulting v. Eubanks, 77 Ark. 232, 72 S.W.3d 549 (2002). Evidence based upon purchase, replacement, or rental prices is improper. Id.
We conclude that this record does not support a finding that Gillham proved all' the elements of conversion. At trial, Gillham testified as follows:
As to whether at that point I had any suspicions about whether or not it was good tide or the vehicle was [Hunsucker’s] property, I asked him for the title, and I had seen his name on it with no lien on it. I am sure that was all right. As far as I was concerned, there was no lien on it. So whatever, he asked, that was what I •was willing to pay for it.
I did have some concerns in a way. I had enough concerns to go see Lloyd’s used car lot to ask him for his advice, but not for the price. I went to Lloyd’s because I wasn’t used to the TIMA forms. There were three TIMA forms, transferring from each dealer to another dealer before it was sold. I wanted to be sure they were correct.
Mr. Lloyd did [ask] me was I trying to steal it. I told him [Hun-sucker] made the price. Mr. Lloyd told me that if I didn’t want it, he would buy it. I did not give him a price or what the man quoted me.
I was concerned that the price was very low. It is true that Mr. Lloyd advised me that I wouldn’t be able to license this vehicle without consulting Mr. Buck. He told me that I would have to get Mr. Buck or have Mr. Hunsucker to license the vehicle, or use my dealer tags to drive it.
This information indicates that appellee had notice of the apparent defects in the tide. It also indicates that appellee should have become suspicious when review of the tide and TIMA forms indicated that Hunsucker had just purchased the vehicle three days prior for $7,500, and that he should have become even more suspicious when he learned that he could not license the truck absent assistance from appellant or Hunsucker. Although appellee testified that “when [Hunsucker] gave me a price, of course I knew it was below [value],” he notably did not ask for the fair market value of the truck in his complaint, but asked only for his $1,500 purchase price.
Black’s Law Dictionary defines “possessory interest” as “the present right to control property, including the right to exclude others, by a person who is not necessarily the owner.” Black’s Law Dictionary 1185 (7th ed. 1999). Although undoubtedly negligent in his actions, appellant held the present right to control the property. Hunsucker acquired title to the vehicle by theft and had not paid the full purchase price for the truck when he took possession. Thus, in theory, appellant continued to have a possessory interest in the truck — in essence, a lien — and that interest was superior to any interest appellee had acquired. See Phelan v. Dalson, 14 Ark. 79 (1853) (it is clear that where property has been obtained from the owner by a felonious act, his unqualified ownership is not in the least changed, and he may peaceably take it, in whose hands soever he may find it.); see also Russell v. Brooks, 92 Ark. 509, 122 S.W. 649 (1909) (where personal property is procured from the owner by a felonious act, or by a fraudulent pretense, his unqualified ownership is not changed, and he may recover it without tendering the consideration received by him). As a result, we conclude that the appellant had a superior right to possess the truck and is not liable to appellee for conversion; therefore, we reverse the trial court’s ruling as it was clearly erroneous.
We note that from the reading of the letter opinion, the court’s decision appears not to be based on the theory of conversion, but on what it believed to be equitable. As this was a tort action, it was commenced in circuit court. The circuit court could not award appellee damages based on the theory of equity.
Reversed.
Gladwin and Roaf, JJ., agree.
Hunsucker eventually pled guilty to theft, but appellant never received restitution from him, although he retained Hunsucker’s trade-in vehicle.
However, the circumstances of a case may sometimes require a different standard, including a measure of the expenses incurred as a result of the conversion. McQuillan v. Mercedes-Benz Credit Corp., supra. | [
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Carleton Harris, Chief Justice.
The sole question presented on this appeal is whether committees of the Board of Trustees of the University of Arkansas are required by the Freedom of Information Act to permit newspaper reporters to be present at meetings. Stated differently, are committees of a board which is itself subject to the provisions of that act exempt from such provisions because they are only subgroups?
The Board of Trustees of the University is composed of ten members, one of whom serves as chairman, and on November 2, 1973, prior to a meeting of the entire board, five trustees, acting as members of the Student Affairs Committee of the Board, met with the president, vice-president and the legal counsel of the University for the purpose of discussing a proposed rule change that would permit University students of legal age to possess and consume intoxicating beverages in University owned or controlled facilities at the Fayetteville campus. Also present was the chairman of the board, who is an ex-officio member of all committees. Ms. Ginger Shiras, a reporter for the Arkansas Gazette, was present for the purpose of reporting events that transpired in a subsequent issue or issues of the aforementioned newspaper. When her presence was discovered, a majority of the members of the committee, acting upon advice of the University’s legal counsel that the Freedom of Information Act did not prohibit exclusion of the public and representatives of the press from committee meetings, voted to conduct the meeting in private, and Ms. Shiras was requested to leave. On December 1, a request by the attorney for the Gazette that a policy be adopted permitting press representatives to attend the meetings was forwarded by mail, but no action apparently was taken on the request. On December 14, 1973, a second meeting of the Student Affairs Committee was held for the purpose of discussing the alcoholic consumption issue, at which time the same members were present. Ms. Shiras again attempted to attend the meeting for the purpose of reporting proceedings, but was told that the policy explained at the November meeting was still in effect and that the committee’s meetings were closed to the press. Ms. Shiras did attend a meeting of the full Board of Trustees later in the day.
Thereafter, appellants instituted suit in the Pulaski County Circuit Court against the Board of Trustees seeking a declaratory judgment relative to their rights under the Freedom of Information Act. After the filing of an answer and the taking of testimony, the court rendered an opinion finding that committees or subdivisions of governing bodies or boards, “functioning in the manner and for the purposes that committees ordinarily do” were not subject to the provisions of the Freedom of Information Act and judgment was entered to that effect and the complaint was dismissed. From such judgment comes this appeal.
For reversal, it is simply asserted that “committees composed of members of the Board of Trustees are required by the Freedom of Information Act to conduct public meetings. ”
The Freedom of Information Act of 1967 is codified as Ark. Stat. Ann. § 12-2801 — 12-2807 (Repl. 1968). The pertinent sections to this litigation are § 12-2802, the second paragraph of § 12-2803, and § 12-2805. The first mentioned section declares the public policy of the State as follows:
“It is vital in a democratic society that public business be performed in an open and public manner so that the electors shall be advised of the performance of public officials and of the decisions that are reached in public activity and in making public policy. Toward this end, this act is adopted, making it possible for them, or their representatives, to learn and to report fully the activities of their public officials.”
This language was commented on in Laman v. McCord, 245 Ark. 401, 432 S.W. 2d 753, the first case interpreting any phase of the Freedom of Information Act (by this court) after its passage by the legislature. After pointing out that the city’s contention that the Freedom of Information Act was a penal statute and accordingly required strict construction, was erroneous, we then said:
“In the act now before us the General Assembly clearly declared the State’s public policy: ‘It is vital in a democratic society that public business be performed in an open and public manner.’ We have no hesitation in asserting our conviction that the Freedom of Information Act was passed wholly in the public interest and is to be liberally interpreted to the end that its praiseworthy purposes may be achieved'.” [Our emphasis].
This, then, is the approach that we shall take in determining the litigation now before us.
Paragraph 2 of § 12-2803 defines “public meetings” as follows:
“ ‘Public meetings’ are the meetings of any bureau, commission or agency of the state, or any political subdivision of the state, including municipalities and counties, Boards of Education, and all other boards, bureaus, commissions or organizations in the State of Arkansas, except Grand Juries, supported wholly or in part by public funds, or expending public funds.”
The manner of conducting public meetings is set out in § 12-2805, pertinent language to the present action reading as follows:
“Except as otherwise specifically provided by law, all meetings formal or informal, special or regular, of the governing bodies of all municipalities, counties, townships, and school districts, and all boards, bureaus, commissions, or organizations of the State of Arkansas, except Grand Juries, supported wholly or in part by public funds, or expending public funds, shall be public meetings.”
It is the contention of appellees, which view was also taken by the trial court, that the language in the statutes just quoted refers only to the governing body as a whole, i.e., public meetings are only required when the full board meets, and committee or subgroup meetings are not covered in the Freedom of Information Act. Granted, the act does not specifically set out the word “committees” when it defines public meetings, and the question thus becomes whether the legislative intent was to encompass the subgroups of a board. Before proceeding further, perhaps it would be well to state that we attach no significance to one of the arguments advanced by appellants. It is pointed out in their brief that six members (including the chairman) of a ten-man board constitute the Student Affairs Committee; that this number likewise constitutes a majority of the board itself, and it is suggested that this circumstance permits the board to transact board business as a committee and thus (according to the view of the board) exclude the public from its meetings. It is also shown by tne evidence that two other board members, not members of the committee, came into the meeting room off and on at the November meeting, and one board member, not a committee member, endeavored to speak, or ask a question at the December meeting which was not permitted. These facts deserve no further comment, for the conclusion which we have reached in this case, hereinafter set out, is not in any manner predicated upon the number of board members constituting the Student Affairs Committee, and our decision would be the same if that committee were composed of a lesser number.
We might also state that decisions from sister jurisdictions are of little help, since the several freedom of information acts over the nation vary from state to state, have been amended from time to time, and the courts have taken divergent views in interpreting these statutes. Actually, there is authority to support both sides in the present litigation.
In Berry v. Gordon, 237 Ark. 547, 376 S.W. 2d 279, this court said:
“In the case of Bailey v. Abington, supra, this Court held that in construing legislation and Constitutional provisions, it is the duty of the courts to ascertain and give effect to the intent of the framers and to the people who adopted it, even though the true intention, though obvious, has not been expressed by the language employed when given its literal meaning; that the courts are confined to the real purpose and intention of the language rather than to the literal verbiage employed; that the reason, spirit, and intention of the legislation or Constitutional provision shall prevail over its letter; that this rule of construction is especially applicable where adherence to the letter would result in absurdity or injustice, or would lead to contradiction, or would defeat, the plain purpose of the law; and that to afford such construction, courts must restrict, modify, enlarge, and/or transpose the expressed terms.”
It clearly appears that the General Assembly, in referring to public meetings, attempted to “cover the field”, using such language as “formal or informal”, “special or regular”, and we attach no particular significance to the fact that the word “committee” is not specifically enumerated; in other words, it was the intent of the legislature, as so emphatically set forth in its statement of policy, that “public business be performed in an open and public manner.” [Our emphasis].
Where is the basic difference in the nature of the business conducted by the board and the committee? Both are dealing with public business — both are dealing with problems that confront the institution which they represent. In fact, it Would appear that the principal difference is that the committee delves more into detail than the board. When the General Assembly used the expression “to learn and to report fully [our emphasis] the activities of their public officials”, it meant not only the action taken on particular matters, but likewise the reasons for taking that action. Actually, public knowledge of the reasons can well result in a board decision being more acceptable or palatable; to the contrary, decisions rendered in secret, the reasons not being known, can well result in perhaps unjustified criticism of a board. Is not the public entitled to know why a board adopts certain rules or regulations? The “why” is the essence of the action taken.
Appellants assert in their brief that if the trial court’s decision is upheld, “The Board of Trustees now has the tool to eviscerate the Freedom of Information Act. Controversial subjects can be dealt with at committee meetings. All of the board members are entitled to attend.” We think there is merit in this contention. Board members can thus acquaint themselves with the issues involved in controversial subjects, hear those issues discussed and debated, and definitely form their conclusions without the particular issues being discussed at the board meeting at all. The concurring opinion by Chief Justice Adkins in the Florida case of Jones v. Tanzler, 238 So. 2d 91 (the court having decided the case by a short/w curiam), is pertinent to this question. There, the Chief Justice stated that a parent body could divide itself into groups of small committees, each member of the committee thus having a chance to commit himself concerning a matter on which foreseeable action would be taken by the parent authority, and the public would have no opportunity to be heard. It was then pointed out that the action of the entire parent body in a public meeting would thus be only an affirmation of the various secret committee meetings that had been held. This aspect of the situation was also commented upon by the court in Bigelow v. Howze, Fla. App., 291 So. 2d 645, where it was said:
“This court may take judicial notice of the fact that committee recommendations are often accepted by public bodies at face value and with little discussion.”
What is a committee? According to The American Heritage Dictionary of the English Language (1969 Edition), a committee is:
“A group of people officially delegated to perform a function, as investigating, considering, reporting, or acting on a matter.”
This definition fits the situation here at issue and it appears to us somewhat incongruous that a parent body cannot go into executive session (except for personnel inatters) but its component parts (the committees) which actually investigate the complaints, and act on those complaints by making recommendations to the board, are at liberty to bar the public from their deliberations. Surely a part (of a board) is not possessed of a prerogative greater than the whole.
Of course, pertinent to our discussion in the instant litigation is the question, “Did the decision reached by the committee affect proposed rules for the student body?” To ask the question is but to answer it, for the committee made its recommendations to the board on the basis of its own investigation, and the board adopted that recommendation with but little discussion. When a committee of a board meets for the transaction of business — this is a public meeting, and subject to the provisions of the Freedom of Information Act.
It is suggested by appellees that appellants are without standing to institute this lawsuit since Ark. Stat. Ann. § 12-2802 (the declaration of public policy heretofore referred to) provides that public business shall be performed in an open and public manner so that the electors shall be advised of the performance of public officials; that the complaint contains no allegation that either appellant is an elector, nor that either appellant has been appointed agent-representative of any electors. This is a surprising argument, and in our view, merits but little comment. In the first place, such an issue does not appear to have been presented to the trial court. In fact, the answer admits the allegations contained in Sections 1 and 2 of the complaint. The former section sets out that the Gazette is a corporation organized under the laws of the State of Arkansas and that Ms. Shiras is a resident of Pulaski County. The latter states that a justiciable controversy exists.
§ 12-2806 provides that any citizen denied rights granted to him under the Freedom of Information Act may appeal to the Pulaski County Circuit Court, but appellees assert that there is no showing that Ms. Shiras is a citizen, but only a .resident. Of course, the declaratory judgment act (Ark. Stat. Ann. § 34-2512 [Repl. 1962]) provides that the word “person” shall also mean, inter alia, a corporation of any character Whatsoever, so there is no doubt but that appellants had standing, under the declaratory judgment act, to have their rights and status declared by the court. Without delving into the distinction between “resident” and “citizen” (which is most often synonymous), § 12-2805 (Freedom,of Information Act) sets out very clearly:
“The time and place of each regular meeting shall be furnished to anyone who requests the information. [Our emphasis].
“In the event of emergency, or special meetings the person calling such a meeting shall notify the representatives of the newspapers, radio stations and television stations, if any, located in the county in which the meeting is to be held and which have requested to be so notified of such emergency of special meetings, of the time, place and date at least two (2) hours before such a meeting takes place in order that the public shall have representatives at the meeting.”
The only way that electors, citizens, or any other member of the public can receive full reports of what transpires in board or committee meetings is by information obtained from the news media. Without such reports, the Freedom of Information Act is without meaning. Of course, the public in general cannot take a trip to Fayetteville or Little Rock, or wherever else the board and its committees, may meet, in order to attend a session and learn what is being done. Necessarily, the information must be acquired from the sources mentioned. Really, the argument is so paradoxical that it defies analysis. At any rate, the language of the act, just quoted, makes clear that members of the news media are indeed interested parties, and we find no merit in the contention.
In concluding, we adopt the language of the Florida Supreme Court in Board of Public Instruction of Broward County v. Doran, 224 So. 2d 693, which succinctly, but accurately, sets forth our own views in the present litigation:
“Statutes enacted for the public benefit should be interpreted most favorably to the public.”
Reversed.
It is so ordered.
Fogleman, J., concurs.
A question concerning race relations also was discussed, complaints having been made by an organization of black students called B-A-D relating to incidents occurring during “Beat Texas Week.”
Counsel relied upon an opinion from the attorney general rendered on July 1, 1971, and it might be here stated that there is no contention but that the board acted in good faith; i.e., it considered its actions to be legal.
Ms. Shiras had just been permitted to attend a meeting of the Legal Committee when the Student Affairs Committee gathered for its meeting in the same room.
It is interesting to note that, according to the testimony, the board works by committees (authorized by the act which created the University) as a means of promoting efficiency and saving time, the main reason being the last. The record reflects that there are ten standing committees, and it is difficult to see how, with so many members on one committee, that much time could be saved since committee appointments are duplicated.
In Comment, “Open Meetings Laws: An Analysis and a Proposal”, 45 Miss. Law Journal 1151, 1974, it is pointed out that only four states are without some type of open meetings legislation.
Appellants cite and review cases from seven states and appellees cite and review cases from eight states, in some instances the parties referring to the same states.
The Florida Freedom of Information Act, West’s F.S.A. § 286.011, in referring to public meetings, mentions those inter alia “of any board or commission of any state agency or authority”, the word “committee” not being included in the statute.
The Chairman of the Student Affairs Cmmittee presented the report to the board, citing the (then) present regulation concerning the use of alcohol on campus, and then reading the committee’s proposed regulation. The minutes then reflect:
“Dr. Miller moved, and Mr. Shults seconded, a motion that the new regulation be adopted. Dr. Kemp asked whether the regulation would be explained that the new regulation would only apply to the Fayetteville campus at this time. Mr. Shankle requested the new regulation proposed to be read aloud again. He asked clarification as to what areas it covered. Dr. Mullins explained that it applied only to students 21 years of age, or older, and their possible use of alcohol within the privacy of their dormitory rooms. There were comments concerning the effective date if the recommendation were to be adopted. In response to inquiries, Dr. Mullins pointed out that options would be available under which other students might choose to be housed in areas away from those where alcoholic use would be permitted. The motion was adopted.” | [
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George Rose Smith, Justice.
This is an action by Leo Chandler, the appellee, for personal injuries sustained in a collision between his car and one driven by the appellant’s decedent, Tressie Lytal, who later died from causes unrelated to the accident. The jury awarded Chandler $10,000. Four points for reversal are urged by the appellant.
Only a brief statement of fact is needed. On the afternoon of May 11, 1971, Chandler was traveling south on Highway 82 in Ashley county. Mrs. Lytal, traveling north, emerged from behind another vehicle ahead of her and, with no signal, tried to turn left across the highway into the premises of the Catfish Inn. Chandler applied his brakes and laid down 90 feet of skid marks, but he struck the Lytal car in his own lane of traffic. Mrs. Lytal told the investigating officer that she did not see the other car before the collision.
I. Before the trial the court granted Chandler’s motion to instruct the attorneys, the parties, and the witnesses to make no reference to the fact that Mrs. Lytal had no liability insurance at the time of the collision. The ruling was correct, because Mrs. Lytal’s lack of insurance protection had no bearing upon the questions at issue. “Where nothing has been done or said from which the jury might infer that the defendant is protected by liability insurance it is improper for defendant to show that he does not have insurance protection.” Annotation, 4 A.L.R. 2d 773 (1949).
II. At Chandler’s request the court gave AMI 901, which explains the duty of a driver to keep a lookout, to keep his vehicle under control, and to drive at a speed no greater than is reasonable in the circumstances. AMI Civil 2d, 901 (1974). The appellant contends that the instruction was abstract, because there was no proof that Mrs. Lytal was driving at an excessive speed or failed to keep her car under control.
Even if the instruction was abstract, the error was harmless. Where an abstract instruction may mislead or confuse the jury, as by permitting a finding of liability upon an issue unsupported by proof, prejudicial error is shown. Johnston v. Pennington, 105 Ark. 278, 150 S.W. 863 (1912). But the giving of an abstract instruction is not reversible error when it could not have resulted in prejudice to the appellant. National Union Ins. Co. v. School Dist. No. 60, 131 Ark. 547, 199 S.W. 924 (1917).
That is the situation here. AMI 901 does not submit an issue; it merely explains the duties of both drivers. If the jury applied the instruction to either driver it would have been to Chandler, who was driving at 55 miles an hour in an area that was built up with commercial establishments and who left 90 feet of skid marks before striking the car crossing his path. Thus the instruction was not abstract as to Chandler, and we can say with confidence that it could not have confused or misled the jury with respect to Mrs. Lytal’s driving. Hence no prejudicial error is shown.
III. After the jury had retired counsel for the defendant objected “to the plaintiff’s closing arguments where he asserted that the heirs of the estate are not parties to the action, thereby unduly impressing upon the jury that they do not stand to lose.” Had the objection been made more promptly the court would have had an opportunity to admonish the jury. As it was, the objection came too late. Caldwell v. State, 214 Ark. 287, 215 S.W. 2d 518 (1948).
IV. We cannot say that the SI0,000 award is excessive. The trial was held three and a half years after the accident. The record suggests that Chandler was still suffering from visible nervousness, that his hands were trembling. Mrs. Chandler testified that her husband had not had a good night’s sleep since the collision. At the time of the trial Chandler was still taking medicine twice a day for his nervousness. He sustained injuries to his head, his back, and his knee, the latter still being numb when the case was heard. The proof would support a finding of pecuniary losses total ing $887.60, plus a substantial but indeterminate amount for the purchase of medicine in the past and in the future. The jury had the. opportunity to observe Chandler’s condition at first-hand. We do not find the award either shocking to the court’s conscience or indicative of passion or prejudice on the part of the jury.
Affirmed. | [
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John A. Fogleman, Justice.
Jimmy Ray Parker was found guilty of robbery of Mrs. Walter Kliner in the taking of her purse containing her checkbook, food stamps, credit cards and money on December 17, 1974. He was charged jointly with Mikel Edward Parker and Terry Eugene Caldwell. He was also found to have been convicted of a felony on at least one previous occasion and sentenced for ten years.
Parker’s motion to suppress any oral statements made by him to the police was denied. The “purse snatching” was reported to the Fort Smith Police Department. The victim described a “purse snatcher” to Patrolman Frank Hartman. The manager of a Ben Franklin store, who came to the aid of Mrs. Kliner when he heard her cries, told the officer that he pursued the person who had taken Mrs. Kliner’s purse and saw him get into a green Dodge automobile bearing license No. BWZ 051. Mike Jordan, a Salvation Army representative, stated that there were two other persons in the vehicle. The police ascertained that this license was registered to a man named Caldwell in Charleston. Mrs. Kliner told the of ficer that her assailant took the purse, her personalized checkbook, her credit cards and identification, but said that her billfold dropped out of the purse as he fled. The information about the vehicle was given to the State Police. When Officer Hartman was advised that the State Police Trooper Acoach had seen the vehicle at the Suburban Liquor Store, he proceeded there, arriving at about the same time as Officer Sweeten. They found there a green Dodge Coronet bearing the license number reported to the police and saw Parker, his brother Mikel and Caldwell in Acoach’s vehicle.
Acoach had known Caldwell. He saw the vehicle parked at the liquor store and stopped there and arrested Caldwell and Mikel Parker, whom he found sitting inside the Caldwell vehicle. After searching and handcuffing them he placed them in his police vehicle and went into the liquor store where he found the proprietor and Jimmy Parker. He asked Jimmy if he had been in the Caldwell vehicle. Upon receiving an affirmative reply, Acoach arrested, handcuffed, and searched Jimmy Parker. Appellant had not been advised of his constitutional rights by the officer. The answer given by appellant to Acoach was the only statement involved.
Appellant contends that this statement should have been suppressed, arguing that it was custodial interrogation because the investigation had focused on him. We do not agree. The information furnished the police was that three persons had been in the vehicle in which the “purse snatcher” fled the scene. When the police officer found two persons in the vehicle which fit the description furnished him, it was natural and proper for him to inquire in the vicinity for a third person. When he went into the liquor store, he may well have intended to ask the proprietor what other persons he had seen in the vicinity. When appellant was found there the inquiry made of him was a natural part of the officer’s investigation and there is no indication that appellant’s freedom had been interfered with in any way before he answered.
Police inquiry is purely investigatory and proper until the suspect is restrained in some way. Miranda v. Arizona, 384 U.S. 436, 86 S. Ct. 1602, 16 L. Ed. 2d 694, 10 ALR 3d 974 (1965). The warnings mandated by Miranda are not required where the person interrogated has not been arrested or deprived of his freedom in any significant way. Patrick v. State, 245 Ark. 923, 436 S.W. 2d 275; Johnson v. State, 252 Ark. 1113, 482 S.W. 2d 600. The statement in this case readily falls within the class in which we held oral statements to police officers admissible in Stout v. State, 244 Ark. 676, 426 S.W. 2d 800; Chenault v. State, 253 Ark. 144, 484 S.W. 2d 887 and in Johnson v. State, supra. In Stout, we held that affirmative answers to the questions of a police officer who arrived soon after a shooting in response to a call by the accused as to the whereabouts of the weapon used and whether the gun produced was the one used were admissible, in spite of the fact that no warnings had been given,- because the investigation had not reached the accusatory state, even though the accused was arrested immediately after answering the questions. In Johnson, a police detective, who had gone to a hospital to see the victim of a “shootout” and who interrogated the accused there in making his investigation of a reported gunshot wound for which the accused was receiving treatment, was permitted to testify that, in response to his questions, the accused identified himself by an incorrect name and gave an account of his activities that proved to be untrue, even though one of the purposes of the interrogation wa-s to see whether or not he was involved in the “shoot-out”. No warnings were given the accused. We said that the officer would have been derelict in his duty if he had not asked the questions he did. In Chenault, the police officers found the body of a murder victim in the front room of his home and the accused, his wife, standing by the kitchen wall with a gun it her hand. When an officer asked her for the gun she handed it over, saying that she had shot the victim. When asked who the victim was, she replied that he was her husband. Even after this, and without any warnings having been given, the officer asked her what happened and she responded, “I shot him. I killed him.” Only after this answer was she warned not to say any more. These utterances, without others were held admissible as spontaneous utterances.
The inquiry here was quite similar to that in Dickson v. State, 254 Ark. 250, 492 S.W. 2d 895, where we found the answers given admissible. We find no error in the admission of appellant’s answer to the inquiry made by the police officer.
Appellant next contends that his motion for directed verdict should have been granted because the statement he made to Officer Acoach should have been suppressed and because there was no identification testimony to support the verdict. This contention actually turns, upon the disposition of appellant’s first argument and must fall with it.
Another of appellant’s points for reversal is his contention that, since he was charged as a principal, the circuit judge erred in giving a jury instruction defining accessories and advising that an accessory could be punished as a principal. The instruction is a proper statement of the law and was properly given. Appellant argues that the abolishment of the distinction between principals and accessories makes the instruction erroneous. To the contrary, this is the only means of making known to thejury that aiders, abetters and advisers in the commision of a crime are principals and punishable as such. Roberts v. State, 254 Ark. 39, 491 S.W. 2d 390. See Fleeman v. State, 204 Ark. 772, 165 S.W. 2d 62. Appellant’s reliance upon Simmons v. State, 184 Ark. 373, 42 S.W. 2d 549 is misplaced. In the first place, the instruction there was requested by the defendant, but we held it abstract under the facts of that case, because the defendant in that case was either a principal or innocent. In the second place, the case was decided before the distinction between principals and accessories was abolished. See § 25, Initiated Act 3 of 1936; Ark. Stat. Ann. § 41-118 (Repl. 1964).
We do not agree with appellant that the trial court erred in refusing to give instructions defining grand larceny and petit larceny as lesser offenses included in the charge of robbery. The evidence here shows that whoever took Mrs. Kliner’s purse, took it by force sufficient to constitute robbery. She said that when someone attempted to grab her purse she “put up a fight,” the robber hit her in the face and the purse was simultaneously “yanked” from her with force sufficient to break her purse strap, so that after the purse was taken she stll held the strap in her hand. She said she was knocked down with such force that she thought she must have blacked out momentarily and was assisted to her feet by a Salvation Army member. She said that she suffered two abrasions and three bruises on her face. Officer Hartman interviewed Mrs. Kliner after the incident was reported. Although he saw no marks on her face at the time, he said that she had “a red.flushed look about her face and cheeks.” Detective Earl Sharp interviewed Mrs. Kliner on the next day. She exhibited a scratch and a bruise on her right cheek.
It is quite true that the mere snatching of money or goods from the hand of another is not robbery, unless some injury is done to the person or there be some struggle for possession of the property prior to the actual taking or some force used in order to take it. Routt v. State, 61 Ark. 594, 34 S.W. 262. See also Coon v. State, 109 Ark. 346, 160 S.W. 226. The evidence was certainly sufficient to sustain a conviction of robbery. Lloyd v. State, 253 Ark. 839, 489 S.W. 2d 240.
It is error to refuse to give a requested instruction defining a lesser included offense when there is testimony on which the defendant might be found guilty of the lesser, rather than the greater, offense. Caton v. State, 252 Ark. 420, 479 S.W. 2d 537. It would not have been error to have given an instruction on larceny. But it is not error to refuse such an instruction when the evidence clearly shows that the defendant is either guilty of the greater charge or innocent. Catón v. State, supra. In this case, there seems to be little reason for doubting that there was a struggle for possession of the purse before the taking was accomplished and that Mrs. Kliner was struck in the face, however slightly. She did retain the purse strap in her hand after the assailant had taken the purse. Even though the abrasions on her face did not immediately appear, her face appeared to the police officer who came to the scene to be red and flushed and it is certainly commonly known that a bruise does not appear immediately after a blow and surface scratches may appear at first only as inflammations. We find no error here.
Appellant’s remaining point for reversal questions the propriety of proving his prior convictions. The evidence offered was in the form of commitments to the penitentiary, which appellant describes as “transcripts of the judgment.” Appellant argues that this evidence was inadmissible because strict construction of the statute only permits introduction of a duly ceritified copy of the judgment of conviction. It is true that the statute is penal and to be strictly construed. Higgins v. State, 235 Ark. 153, 357 S.W. 2d 499. But there is nothing in the statute which prevents proof of prior convictions by admissible evidence other than the two items of documentary evidence mentioned in Ark. Stat. Ann. § 43-2330 (Repl. 1964). That section provides only that when either of these items of evidence is introduced, it constitutes prima facie evidence. This section of the statute makes a duly certified copy of the record of a former conviction and judgment of a court of record for imprisonment in the penitentiary against the person indicated prima facie evidence of the conviction. The commitments admitted into evidence are certified by the clerks of the respective courts as “transcripts of the judgment and sentence of said court in the cause therein mentioned.” The identity of the court and case appear as a caption at the very beginning of each of the instruments. A reading of the instruments indicates that they are actually literal recitations of thejudgments in the respective cases. Each concludes with an order of the court that its clerk make out and deliver a certified copy of the judgment as authority for the agent or keeper of the penitentiary or the Department of Correction to receive and confine the defendant Jimmy Ray Parker. There was no error in the admission of these documents in evidence.
The judgment is affirmed.
Roy, J., not participating. | [
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George Rose Smith, Justice.
On October 17, 1972, the appellant Glover and his partner Ferguson, who were in the meat-packing business, borrowed $20,000 from the appellee bank and gave a 90-day note for the debt. The partnership was not doing well. Two or three days before the note was due Glover informed an officer of the bank that Ferguson was buying Glover’s interest in the partnership (for $25,000 cash), that Ferguson was assuming all liabilities, and that Glover did not want the note extended and would not sign a renewal note. Some five months later Ferguson went bankrupt, his estate in bankruptcy eventually paying $758.92 upon the note.
The bank brought this action against Glover to collect the amount due on the note. At the close of the proof the trial judge directed a verdict for the bank. Glover argues that the jury should have been allowed to decide (a) whether the bank discharged Glover’s obligation by agreeing not to sue Ferguson and (b) whether the bank was estopped from pursuing its remedy against Glover by reason of its failure to collect the note by offsetting it against the meat-packing concern’s checking account in the bank.
Neither point has merit. Upon point (a) the appellant cites Ark. Stat. Ann. § 85-3-606 (Add. 1961), which provides that the holder of an instrument “discharges any party to the instrument to the extent that without such party’s consent the holder . . . agrees not to sue any person against whom the party has to the knowledge of the holder a right of recourse ...” Of course the statute means an enforceable contract. Clark, Suretyship in the Uniform Commercial Code, 46 Tex. L. Rev. 453, 457 (1968). Here there is simply no proof that the bank made any sort of binding agreement that it would not sue Ferguson. All the proof shows is that the bank twice accepted from Ferguson a payment of interest after the note was due. That evidence does not satisfy the appellant’s burden of proving that the bank made an enforceable promise not to sue Ferguson. The jury would have had no basis except speculation for finding that such an agreement existed; for no one so testified.
Upon point (b) the proof shows that on several days between the due date of the note and Ferguson’s bankruptcy the meat-packer’s checking account in the appellee bank briefly exceeded the amount of the note. The bank admittedly could have applied such funds in satisfaction of the note. Rush v. Citizens Nat. Bk., 114 Ark. 170, 169 S.W. 777 (1914). But there was no duty upon the bank to do so. Central Bank & Trust Co. v. Meltzer, 145 So. 2d 766 (Fla. App., 1962); cf. Peoples State Bank v. Caterpillar Tractor Co., 213 Ind. 235, 12 N.E. 2d 123 (1938). Moreover, there is no proof of an essential element of estoppel; that is, that Glover relied to his detriment upon the bank’s failure to offset the two claims. Indeed, there is no proof that the possibility of an offset was ever mentioned by Glover or the bank’s officers. The plain fact is that Glover was a principal obligor upon the note and sold his interest in the meat-packing partnership for $25,000. He never asked that the accounts be offset and certainly did not rely to his detriment upon the bank’s failure to do so.
It is also argued that the trial court should have admitted into evidence copies of the meat packer’s bank statements, showing that at times the amount in the checking account exceeded the amount of the note. Inasmuch as such proof would not have made a case for the jury, as we have seen, the admissibility of the bank statements becomes immaterial.
Affirmed.
Harris, C.J., and Holt, J., not participating. | [
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J. Fred Jones, Justice.
This is an appeal by Richard R. Heath, Director of Department of Finance and Administration of the State of Arkansas, from a declaratory judgment in favor of the appellee, El Dorado Golf & Country Club, wherein the circuit court held void an assessment, and enjoined the collection, of Arkansas gross receipts tax on membership dues colleqted by and paid to the appellee, El Dorado Golf & Country Club.
The only question presented at the trial in this case was whether membership dues paid by members of a country club are subject to the gross receipts tax imposed by Ark. Stat. Ann. § 84-1903 (Repl. I960), and the only question before us on appeal is whether the trial court erred in holding the tax not applicable to such dues. The Director contends that the tax is collectable under authority of § 84-1903, specifically subsection (e) of the statute, and the appellant contends in points for reversal as follows:
“The Legislature intended that ‘dues’ as well as ‘fees’ paid for the privilege of having access to or the use of amusement, entertainment, athletic or recreational facilities be subject to Arkansas Gross Receipts Tax.
The appellee, El Dorado Golf and Country Club, is a place which provides its members access to or the use of amusement, entertainment, athletic or recreational facilities. ”
The question presented was before this court in the case of Scurlock, Comm. of Revenues v. Hardscrabble Country Club, 224 Ark. 629, 275 S.W. 2d 638 (1955), but we did not reach the merits in that case because of improper venue. We did, however, consider and comment on the point here involved in Cheney, Commr. v. Tolliver, 234 Ark. 973, 356 S.W. 2d 636, wherein the gross receipts tax on coin-operated music machines was primarily involved and the memorandum opinion of the chancellor was adopted as a part of the opinion by this court on appeal. In the Tolliver case § 84-1903 (e) was considered in connection with § 84-1902 (c). The pertinent portions of these sections read as follows:
“84-1902 — The following words and phrases shall, except where the context clearly indicates a different meaning, have when used in this act [§§ 84-1901 — 84-1904, 84-1906 — 84-1919], the following meanings:
* * *
(c) Sale: The term ‘sale’ is hereby declared to mean the transfer of either the title or possession for a valuable consideration of tangible personal property, regardless of the manner, method, instrumentality, or device by which such transfer is accomplished. The term ‘sale’ is also declared to include the exchange, barter, lease or rental of tangible personal property where such exchange, barter, lease or rental results or may result in either the transfer of the title or the possession. The term ‘sale’ shall include also he sale, giving away, exchanging or other disposition of admission, dues or fees to clubs, to places of amusement, recreational, or athletic events, or for the privilege of having access to or the use of amusement, recreational, athletic or entertainment facilities. The term ‘sale’ shall not include the furnishing or rendering of service or services, except as is herein otherwise provided.
84-1903 — There is hereby levied an excise tax of three per centum (3%) upon the gross proceeds or gross receipts derived from all sales to any person subsequent to the effective date of this act ... of the following:
* * *
(e) The sale of tickets or admissions to places of amusement, to athletic, entertainment, recreational events, or fees for the privilege of having access to or the use of amusement, entertainment, athletic or recreational facilities, including free or complimentary passes and tickets, admissions, dues or fees, such fee or complimentary passes, tickets, dues or fees hereby being declared to have a value equivalent' to the sale price of tickets, passes, admissions, fees or dues of like kind or character.”
In the Tolliver case, supra, the chancellor’s opinion which was adopted by this court reads in part as follows:
“ ‘For the issues to be resolved, the court must determine the implications raised by the above two sections.
Q. Do they cover the proceeds derived from Automatic Mechanical Music Machines?
To do this, the court will first analyze the section which levies the tax. What does it levy the tax on?
1. The sale of tickets and admissions to
a. Places of amusement.
b. To athletic events.
c. To places of entertainment.
d. To recreational events.
2. It also levies on fees for the privilege of one having access to or the use of,
a. Amusement facilities.
b. Entertainment facilities.
c. Athletic facilities.
c. Recreational facilities.
Note: (this section does not make a levy on ‘Dues’ unless they are free or complimentary).
* * *
In Wiseman v. Arkansas Utilities Co., 191 Ark. 854, 88 S.W. 2d 81, it was said:
It is the general rule that a tax cannot be imposed except by express words indicating that purpose. The intention of the Legislature is to be gathered from a consideration of the entire act, and where there is ambiguity or doubt it must be resolved in favor of the taxpayer and against the taxing power.’ ”
After copying the above from the memorandum opinion of the chancellor, this court in Tolliver said:
“We do not deem it necessary to add anything to the Chancellor’s opinion concerning the application of Act No. 386 of 1941, as his reasoning is clear and sound.
* * *
And what the Chancellor quoted from Wiseman v. Arkansas Utilities Co., 191 Ark. 854, 88 S.W. 2d 81, is apropos here:
‘It is the general rule that a tax cannot be imposed except by express words indicating that purpose. The intention of the Legislature is to be gathered from a consideration of the entire act, and where there is ambiguity or doubt is must be resolved in favor of the taxpayer, and against the taxing power.-’ ”
It is true, as pointed out in Hervey v. Southern Wooden Box, 253 Ark. 290, 486 S.W. 2d 65 (1972), it is our duty to give the statute a reasonable interpretation but, as we said in Jefferson Coop. Gin v. Milam, 255 Ark. 479, 500 S.W. 2d 932 (1973):
“ [L]et us bear in mind that there is also a cardinal rule which must be observed in construing taxing legislation. In Commissioner of Revenues v. Arkansas State Highway Commission, 232 Ark. 255, 337 S.W. 2d 665, we said, quoting an earlier case [Scurlock v. City of Springdale, 224 Ark. 408, 273 S.W. 2d 551]:
‘It is the general rule that a tax cannot be imposed except by express words indicating that purpose. The intention of the Legislature is to be gathered from a consideration of the entire act, and where there is ambiguity or doubt it must be resolved in favor of the taxpayer, and against the taxing power.’
See also Cook, Commissioner of Revenues v. Ayers, 214 Ark. 308, 215 S.W. 2d 705, and cases cited therein.”
We conclude that the phrase “of the following” in § 84-1903, supra, limits the sales for which the gross receipts tax is levied. Although the definition of “sale” in § 84-1902 includes “dues or fees to clubs,” that term is absent from the tax imposing section as noted in the chancellor’s opinion adopted by this court in Tolliver, supra. Had the Legislature intended to impose the tax on club membership dues or fees, other than when free or complimentary, it could easily have done so during the legislative sessions since 1962 when the deficiency was noted in Tolliver.
The judgment is affirmed.
Holt and Roy, JJ., not participating. | [
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Frank Holt, Justice.
Appellants were convicted by a jury of grand larceny. Wickliffe’s punishment was assessed at three years and Scott’s at three years (with two suspended) in the State Department of Correction. Appellants first contend for reversal that the court erred in denying their motion to suspress certain evidence. The basis for the motion was that the state acquired possession of certain items, particularly a set of tree trimming shears, by an unreasonable search and seizure which is prohibited by the Federal Fourth Amendment and Art. 2, § 15 of the Arkansas Constitution (1874). Appellants argue there was neither probable cause for their arrest nor the seizure of their vehicle and that a warrantless search, approximately twelve hours after their arrest at a time when they were in custody, was in violation of their constitutional rights.
A witness for the state testified that about 9 p.m. he observed a pickup truck near his house passing back and forth on a road between some highline poles which were adjacent to the highway. The truck’s motor “was killed” and shortly thereafter the “highline roared.” He then walked down to where the unattended truck was parked. He observed it closely and that copper wire was missing from the highline poles for approximately “3 pole lengths” or “nearly a quarter” of a mile. The witness promptly reported the suspicious circumstances to the sheriff’s office. A deputy sheriff testified that he received the information supplied by this witness and drove to the scene looking for a vehicle fitting the descrption. When he arrived, the two occupants, the appellants, drove away in a pickup truck. He stopped them after a short distance and took them into custody. He looked into the back of the pickup truck and saw a pair of tree trimmers in open view. He returned to where he first observed the vehicle and found two rolls of copper wire which he then placed in the back of the truck along with the trimmers. He had the truck towed into a nearby town and locked up in a fenced salvage yard. The next day, the appellants being in jail, the officer removed the trimmers and other articles from the open bed of the pickup truck without a search warrant.
All warrantless searches and seizures are not prohibited by our federal and state constitutions. Only those which are unreasonable. Alexander v. State, 255 Ark. 135, 499 S.W. 2d 849 (1973). Also an automobile, given probable cause, is subject to a warrantless search and seizure because it is a mobile or fleeting object. Roach v. State, 255 Ark. 773, 503 S.W. 2d 467 (1973); and Easley v. State, 255 Ark. 25, 498 S.W. 2d 664 (1973); and Carroll v. United States, 267 U.S. 132 (1925). Certainly, in the case at bar, there existed probable cause for the officer to stop and take control of the pickup truck and arrest appellants in view of the recited activities of its occupants and the fact that it fit the description relayed to police officers by a witness at the scene of the alleged offense. Anderson v. State, 256 Ark. 912, 511 S.W. 2d 151 (1974); Roach v. State, supra; Easley v. State, supra; and Cox v. State, 254 Ark. 1, 491 S.W. 2d 802 (1973). The appellants, however, argue vigorously that a warrantless search of the pickup truck the following day or about twelve hours later at the enclosed junkyard where the officer had impounded the vehicle under lock and key was illegal.
In Cox and Easley we held that where the intial intrusion of a vehicle was justified a subsequent warrantless search of a vehicle, after being removed into town, comported with constitutional standards. In doing so, we reviewed pertinent federal decisions. In approving a subsequent warrantless search of impounded vehicles in Cox and Easley, we cited, inter alia, Chambers v. Maroney, 399 U.S. 42 (1970). There the warrantless search of an automobile was made at the police station sometime after the car was apprehended on the highway. In Coolidge v. New Hampshire, 403 U.S. 443, 463 N. 20 (1971), the court said:
It is true that the actual search of the automobile in Chambers was made at the police station many hours, after the car had been stopped on the highway, when the car was no longer movable, any “exigent circumstances” had passed, and, for all the record shows, there was a magistrate easily available. **** The rationale of Chambers is that given a justified initial intrusion, there is little difference between a search on the open highway and a later search at the station.
In the case at bar, since a justified initial intrusion existed at the time the vehicle was taken into custody, at which time the offending articles were in plain view, we hold the appellants’ asserted constitutional rights were not violated by the officer retrieving the articles from the open bed of the impounded truck some twelve hours later.
Appellants next contend that it was error to admit the tree trimmers into evidence “because (1) they were the fruits of an illegal search and seizure **** and (2) they were not competent evidence because the chain of custody was never established.” As indicated, the trimmers were not the fruit of an illegal search and seizure. Neither can we agree that the proper chain of custody was not sufficiently established. The arresting officer testified that he saw the trimmers in open view in the back of the pickup truck which the appellants were occupying at the time of their arrest. Appellants argue that the salvage yard owner, who towed the truck into town, was not called as a witness; the officer, who made the arrest, could not say if anyone else went with the truck; neither were there any identifying marks placed on the trimmers at the scene of the arrest; and it was not until the next day that the officer went to the salvage yard and took possession of the trimmers and marked them for identification. Therefore, appellants assert the evidence was inadmissible since the state did not establish that it had the sole and exclusive possession, control and custody of the trimmers from the time they were taken from appellants until they were introduced into evidence. There is no evidence whatsoever that the trimmers were tampered with in any manner and were not authentic evidence. The state’s witness testified that the trimmers were the same as those in the truck on the night of the arrest.
In West v. United States, 359 F. 2d 50, 55 (8th Cir. 1966), cert. den. 385 U. S. 867 (1966), the court said:
Appellant seems to be arguing that as long as it was conceivable that the evidence could have been tampered with, it should not have been admitted. This, however, is not the law. The government need not exclude all possibilities of tampering. The Court need only be satisfied that in reasonable probability the article had not been changed in important respects.
Further, the court held that the court is accorded some discretion in determining the admissibility of evidence.
In Fight v. State, 254 Ark. 927, 497 S.W. 2d 262 (1973), we said “ [T] he purpose of the chain of identification is to prevent the introduction of evidence which is not authentic.” To the same effect are Witham v. State, 258 Ark. 348, 524 S.W. 2d 244 (1975); and Freeman v. State, 238 Ark. 804, 385 S.W. 2d 156 (1964).
In the case at bar, we are of the view the court did not abuse its discretion in holding that the evidence was admissible since in all reasonable probability the trimmers had not been changed. The jury was free to disregard or discredit the evidence due to the asserted deficiency.
Affirmed. | [
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John A. Fogleman, Justice.
Marcel Barnes was found guilty of robbery with a firearm and sentenced to eight years’ imprisonment. In this appeal, he argues eight points for reversal. Since we find reversible error in the circuit court’s partial denial of his request that he be permitted to conduct his own trial and his concomitant attempt to reject the services of the public defender, we discuss that point first.
Appellant was charged on August 15, 1974. When arraigned on August 29, 1974, he assured the circuit judge that he would obtain counsel, and his trial was set for September 24. Again on September 12, he advised the court that he was still trying to hire an attorney and requested a continuance which was granted with a strong admonition to Barnes not to let the matter “drift along”. Trial was then set for October 22 and on October 10, when the circuit judge made inquiry of Barnes, he stated that he had employed J. W. Whitehead as his attorney. A motion for continuance was filed on behalf of Barnes by Whitehead and the trial reset for November 19. Later Whitehead’s partner, Patrick D. O’Rourke, was associated as one of Barnes’ attorneys. On November 18, Barnes made oral motions to dismiss these attorneys and for a further continuance to obtain another attorney, both of which were granted. On January 3, 1975, the circuit judge discovered that Barnes still had not employed another attorney. Up until this point, Barnes had rejected all offers of the court to appoint counsel but he then agreed to accept representation by the public defender, with the right to employ additional counsel.
Trial was had on February 4. On that morning, Barnes moved that he be permitted to represent himself at the trial. He stated that he had been “lied to” and “deceived” by everyone, including the public defender, but his explanation as to how the public defender had deceived him was vague, to say the least. The trial judge examined Barnes on the basic rules of evidence and trial procedure and appropriately found that he knew nothing about them and was not qualified to represent himself. The judge, feeling that he had a duty to protect the right of Barnes to a fair trial by due process of law, warned him that he would be under the same restrictions that a lawyer would but finally held that Barnes would be allowed to make an opening statement, conduct voir dire examination of prospective jurors, and make a closing argument, but not to examine witnesses. Barnes vehemently protested against the public defender having anything to do with the case and insisted on being allowed to examine the witnesses, claiming a constitutional right to do so, but the circuit judge refused to change his ruling.
Art. 2, § 10 of the Arkansas Constitution provides that an accused in a criminal prosecution shall enjoy the right to be heard by himself and his counsel. Our own cases have clearly recognized the right of a defendant under our constitution to conduct his own defense in a criminal trial, whether for felony or misdemeanor, if he elects to do so. Wimberly v. State, 214 Ark. 930, 218 S.W. 2d 730; Williams v. State, 153 Ark. 289, 239 S.W. 1065; Phillips v. State, 162 Ark. 541, 258 S.W. 403; Williams v. State, 163 Ark. 623, 260 S.W. 721; Slaughter v. State, 240 Ark. 471, 400 S.W. 2d 267; Childs v. State, 243 Ark. 62, 418 S.W. 2d 793.
The question was first treated in this state more than 50 years ago in Williams v. State, 153 Ark. 289, 239 S.W. 1065, where the accused sought and was granted permission to conduct his own defense, after the court had offered to appoint counsel to defend him. There, speaking through the late great Justice Frank G. Smith, this court said:
The Constitution gives one accused of crime the right to appear by himself and his counsel; but the services of an attorney cannot be forced upon him. Article 2, § 10. Const. 1874. He has the right, if he so elects, to conduct his own defense, but he does not thereby become absolved from the duty of observing the rules of practice designed to promote the orderly administration of the law. *****
In that case the primary question before the court was whether the appellate court would review questions raised in a motion for new trial, where no objection had been made during the course of the trial. The right to self-representation was more directly involved less than two years later in Phillips v. State, supra. There it was held that an accused could not complain that he was not represented by counsel where his retained counsel, through a misunderstanding, did not appear, and the defendant rejected the appointment of counsel. This court then said:
This court has held that the constitutional guaranty of the right of the defendant in a criminal case to be heard in his own defense by himself and counsel is for the benefit of the accused and that the accused may at his option decline to have counsel appointed to represent him and conduct his own case. Williams v. State, 153 Ark. 289, 239 S.W. 1065.
In a case note to 17 ALR 266, it is said that it is universally held that a defendant in a criminal case who is sui juris and mentally competent may conduct his defense in person without the assistance of counsel. To the same effect, see case note to Ann. Cas. 1913C, at pag" 739. Numerous cases are cited in the notes to support the holding.
In Slaughter, followed in Childs, we held that the right to counsel in a criminal trial was a personal one, which could be waived, either at the pretrial stage or at trial. The only qualification on this right ever recognized by us is that an accused’s waiver of his right to counsel be knowingly and intelligently made. See Childs v. State, supra; Slaughter v. State, supra; Phillips v. State, supra.
Even if our own constitution and cases did not control, while this case was pending on appeal, the U.S. Supreme Court removed all do bt about the existence of a federal constitutional right of a defendant in a state criminal trial to self-representation under the Sixth Amendment to the U.S. Constitution, as made applicable to the states by the Fourteenth Amendment, so long as he voluntarily and intelligently elects to do so. See Faretta v. California, 422 U.S. 806, 95 S. Ct. 2525, 45 L. Ed. 2d 562 (1975). In that case, it was made clear that forcing a defendant against his will to accept a state-appointed public defender and denying his request to conduct his defense was reversible error. The factual background is strikingly similar to this case.
The state’s efforts to distinguish Faretta in its brief filed three weeks after that decision was rendered, are inapt. Although Barnes did not make his desire to defend himself known to the court until the morning of the trial, in contrast to Faretta’s having declared his desire weeks in advance, there is no language in Faretta that would lend any significance to such a distinction. The U.S. Supreme Court said that it had concluded that a state may not constitutionally hail a person into its criminal courts and there force a lawyer upon him when he insists that he wants to conduct his own defense. The only qualification that we can find in that opinion is that the defendant’s election to proceed without counsel must be voluntarily and intelligently made. This record is devoid of anything indicative of involuntariness in Barnes’ election.
Even though we might agree with the trial court, the public defender, our attorney general, and the dissenters in Faretta that such an election is pure folly and that only confusion can result, the test whether the election has been intelligently made is not the wisdom of the decision or its effect upon expeditious administration of justice. It is only necessary that a defendant be aware of the dangers and disadvantages of self-representation so the record will establish that the defendant knows what he is doing and his choice is made “with eyes open”. His technical legal knowledge is totally irrelevant in the assessment of his knowing exercise of the right to defend himself. The record here clearly discloses that the circuit judge pointed out to the defendant his lack of knowledge of procedures and rules of evidence and the hazards attendant upon his choice. Barnes’ request was not refused because it was not knowingly and intelligently made. It was refused in an effort to protect Barnes from his ignorance as to rules of evidence and procedures in presenting evidence.
Our own decision, as well as those cited in Faretta, have clearly pointed to its result. See also, Minor v. United States, 375 F. 2d 170 (8 Cir., 1967). It is interesting to note that the majority in Faretta read Art. 2 § 10 as explicitly conferring the right of self-representation. We have consistently done so, too.
We find the limitations on the right enumerated by the Court of Appeals of New York appropriate and consistent with our own decisions and with Faretta. In People v. McIntyre, 36 N.Y. 2d 10, 324 N.E. 2d 322 (1974), which antedated the decision in Faretta but came after it was argued, that court said:
A defendant in a criminal case may invoke the right to defend pro se provided: (1) the request is unequivocal and timely asserted, (2) there has been a knowing and intelligent waiver of the right to counsel, and (3) the defendant has not engaged in conduct which would prevent the fair and orderly exposition of the issues.
Here the request was definitely unequivocal. It was timely because it was made before the trial commenced. See McIntyre; Minor v. U.S., 375 F. 2d 170 (8 Cir., 1967); Williams v. State, 153 Ark. 289, 239 S.W. 1065; Phillips v. State, 162 Ark. 541, 258 S.W. 403; Williams v. State, 163 Ark. 623, 260 S.W. 721. Had the trial proceeded prior to the request, it may not have been timely. See Mosby v. State, 249 Ark. 17, 457 S.W. 2d 836; Williams v. State, 16 S.W. 816.
The test whether waiver of the assistance of counsel is intelligently made has been frequently applied. Of course, such a waiver is not intelligently made if the accused is not pientally capable of acting for himself. Williams v. State, 163 Ark. 623, 260 S.W. 721. Otherwise, the determination in each case must depend upon the particular facts and circumstances surrounding it. Swagger v. State, 227 Ark. 45, 296 S.W. 2d 204; Jackson v. State, 249 Ark. 653, 460 S.W. 2d 319. Even a minor who is mildly defective mentally may knowingly and intelligently waive his right to counsel, if he understands the situation and questions propounded to him on the subject. Cox v. State, 240 Ark. 911, 405 S.W. 2d 937. See also, Jackson v. State, supra. All that is required is that the accused have full knowledge or adequate warning concerning his rights and a clear intent to relinquish them. Franklin v. State, 251 Ark. 223, 471 S.W. 2d 760; Jackson v. State, supra.
This record shows clearly that Barnes was well informed and advised of his rights and that he deliberately and persistently stated his election to conduct the trial without counsel. There is nothing to indicate that he was mentally incompetent or defective in any way or that he had, or intended to, engage in disruptive conduct. We are not concerned with the wisdom of his decision. The judgment here must be reversed for failure to permit Barnes to conduct his own defense.
This brings us to a consideration of those points for reversal which are likely to arise upon a retrial. Assuming that appellant’s arrest was illegal, as he asserts, we are convinced that the court did not err in refusing to suppress the testimony of Sylvia Rush, the victim of the robbery at a liquor store identifying him as the robber. The only evidence of identification at the trial was that made by her in court. The evidence that her in-court identification of Barnes was not tainted by any pretrial lineup or showup identification clearly supports the denial of Barnes’ motion to suppress her testimony.
At a pretrial hearing on appellant’s motion to require a showing of probable cause for his arrest and to suppress Mrs. Rush’s identification testimony she positively identified Barnes as the robber. She said that Barnes had been in the liquor store some two weeks after the robbery and had questioned her about the robbery and her ability to describe the robber. She denied having seen him after the robbery except on this occasion and at the lineup, but said she had seen him at another liquor store where she was sometimes employed.
At this hearing, Barnes admitted being at the liquor store where Mrs. Rush worked on the occasion she said he appeared after the robbery. At the trial, she said that the robber was just across the counter from her when she was robbed and that she had seen him twice previously at the other liquor store and on the subsequent occasion when he questioned her about the robbery. It was brought out on her cross-examination that she had said that another man the police brought in was not the robber, even though he was about the same height and weight as the robber and wearing a shirt similar to that worn by him. We find no indication that her in-court identification was tainted by the lineup.
There was error in the admission of testimony about the circumstances of Barnes’ arrest. It was made more than two weeks after the crime at a motel, which was not Barnes’ place of residence. We find nothing of any probative value on the question of guilt or innocence in this testimony. This evidence was totally irrelevant. See Stuart v. State, 222 Ark. 102, 257 S.W. 2d 372.
There was no error in denial of a mistrial because of questions propounded to Barnes on cross-examination. The prosecuting attorney asked Barnes if he had not been guilty of possession of marijuana on June 23, 1973, and he answered negatively. When the prosecuting attorney asked, “And during the arrest you were guilty of flushing it down the commode when the officers attempted to place you under arrest?” he also answered negatively. When the public defender objected to the form of the question because it referred to an arrest, the circuit judge promptly and positively instructed the jury to disregard the question as asked and not to consider it as evidence in its deliberations. After the judge per mitted the prosecuting attorney to rephrase the question, he again asked Barnes if he had not tried to flush the marijuana down the commode. An objection was promptly sustained and appellant never answered this question. No motion for mistrial or for admonition was made at this time.
Appellant’s argument that his motion for directed verdict should have been granted is actually based upon a contention that the testimony of Sylvia Rush was discredited and the rather odd argument that his own conflicting testimony overrides hers. Of course the credibility of the witness was a matter for the jury’s consideration. We can say that the testimony of a witness should be disregarded only when it is physically impossible, or that there is no reasonable probability that his version is correct. See Baldwin v. Wingfield, 191 Ark. 129, 85 S.W. 2d 689. Where the testimony is conflicting, this court does not pass upon the credibility of the witnesses and.has.no right to disregard the testimony of any witness after the jury has given it full credence, at least where, as here, it cannot be said with assurance that it was inherently improbable, physically impossible or so clearly unbelievable that reasonable minds could not differ thereon. King v. State, 194 Ark. 157, 106 S.W. 2d 582; Linebaugh v. State, 192 Ark. 1178, 97 S.W. 2d 61.
Another point urged by appellant is that the court erred in giving an instruction covering the statute relating to punishment for robbery with a firearm. See Ark. Stat. Ann. § 43-2336 (Supp. 1973). It seems from a reading of his brief that the argument advanced is that there is confusion in administering the statute in the trial courts, as illustrated in our decisions, that our decisions have added to the confusion and hence the statute is unconstitutional as a violation of due process because it is vague and indefinite. This unique argument is unsupported by citations of precedent. Furthermore, appellant does no more than give citations to our decisions which he says are illustrative of the confusion.
In Johnson v. State, 249 Ark. 208, 458 S.W. 2d 409, we held that the trial judge could not add an additional term of years to the sentence fixed by the jury upon his finding from the evidence that a firearm was used and that the accused must be informed from the information or indictment that he is charged with use of a firearm. In Redding v. State, 254 Ark. 317, 493 S.W. 2d 116, we held that the factual issue as to use of a firearm must be resolved by the jury, unless a jury trial is waived, in which case the issue is determined by the trial judge. In Roach v. State, 255 Ark. 773, 503 S.W. 2d 467, we held that there was no double jeopardy or violation of due process in a jury’s enhancement of a sentence both on account of the accused’s being a habitual offender and on account of his use of a firearm. In Cotton v. State, 256 Ark. 527, 508 S.W. 2d 738, we reiterated that the use of a firearm must be charged in the information and that, even though the jury made a specific finding that a firearm was used, the jury, not the judge, must enhance the sentence on that account. In Haynie v. State, 257 Ark. 542, 518 S.W. 2d 492, we held that the enhancement of the sentence by the trial judge after an affirmative finding by the jury was not reversible error in the absence of an objection in the trial court to that procedure and that the information need not charge the use of a firearm in a separate count or paragraph.
We do not perceive any confusion and certainly not enough to justify us in classifying the statute as vague and indefinite.
We do not fully comprehend appellant’s conclusion that the statute and its application in this case constitute double jeopardy and violate due process. He does not say how this results. He does suggest that the manner of submitting the question to the jury was confusing, somehow made its verdict violative of due process, and placed him in double jeopardy. We are simply unable to follow this argument. The judge instructed the jury on the definition of robbery and the range of punishment permissible. He then stated that Barnes was charged with employing a firearm during the commission of a robbery and that, if they found from the evidence, beyond a reasonable doubt, that he did employ a firearm as a means of committing a robbery, the jury might subject him to a period of confinement, not to exceed 15 years, in addition to the period of confinement for the conviction of robbery, and that it would also run consecutively thereto. The forms of verdict were submitteed to the jury on two separate sheets of paper. One of them was headed “VERDICT AS TO ROBBERY” followed by the words “We, The Jury, find —” and a number of blank lines with a line for the signature of the foreman. The other form was identical, except that it was headed “VERDICT AS TO USE OF FIREARM IN ROBBERY”. On the first, the jury filled in the words “Marcel Alvin Barnes - Guilty and fix punishment at three years” over the signature of the foreman. On the second the words inserted over the foreman’s signature were identical, except that the punishment was fixed at five years.
We do not see how the jury could have been confused by the procedure. If Barnes was guilty of robbery, he was certainly guilty, under the state’s evidence, of using a firearm. Obviously the jury was not confused. Their assessment of the minimum punishment for the basic offense is itself an indication that they clearly understood the law and the procedure.
Since the conviction is reversed, we cannot say, with assurance, that there will be a question about credit for pretrial incarceration on retrial. The circuit judge held a hearing at the time of sentencing and denied full credit for that time. Barnes testified that he had been indigent at all times since his arrest. The judge denied credit for any time spent in jail prior to January 1, after establishing that all continuances had been granted at Barnes’ request, obviously because he felt that Barnes’ tactics had been dilatory. He may have been justified in this feeling. See Slaughter v. State, 240 Ark. 471, 400 S.W. 2d 267. If so, the court had discretion to deny credit for the delay attributable to his actions. Coleman v. State, 257 Ark. 538, 518 S.W. 2d 487. The state and victims of crime are to be considered, along with persons accused in requiring promptness in trials.
Appellant asks us to abandon our decisions upholding the exercise of discretion by the trial judge in any case, saying that they are legal gymnastics which strain legal reasoning to uphold the trial court’s discretion in denying “jail time” credit and that the “legal mess created by these cases should be cleared up.”
We hasten to point out that the statute in force at the time of Barnes’ trial clearly vests discretion in the trial judge to decide whether credit for “jail time” be given. Ark. Stat. Ann. § 43-2813 (Supp. 1973). We have not felt, and do not now feel that we are at liberty to amend or repeal this statute. We have recognized for quite some time that there are constitutional limitations on the exercise of that discretion in that “jail time” credit cannot be denied when the pretrial incarceration was due solely to the indigency of the accused. See Smith v. State, 256 Ark. 425, 508 S.W. 2d 54; Tate v. State, (Supplemental Opinion on Rehearing) 258 Ark. 138-A, 524 S.W. 2d 624 (1975); Yarbrough v. State, 257 Ark. 732, 520 S.W. 2d 227. But we have held that such credit is not required in the absence of evidence that the pretrial confinement was due to the financial inability of the accused to make the bail set by the circuit court. Ransom v. State, 257 Ark. 522, 518 S.W. 2d 490. See also, Varbrough v. State, supra. The right may be bargained away. Ray v. State, 256 Ark. 310, 509 S.W. 2d 830. It is to be credited on the sentence imposed and the sentence cannot be made retroactive to the date of the original incarceration in lieu of the credit. West v. State, 257 Ark. 582, 518 S.W. 2d 497; Harper v. State, 249 Ark. 1013, 462 S.W. 2d 847. Any confusion in appellant’s mind must arise from a failure to read decisions prior to Smith in its light and in the light of subsequent decisions.
The judgment is reversed and the cause remanded.
In a footnote to the Faretta opinion, it is made clear that, even over the objection of a defendant, the court may appoint “standby counsel” to aid the accused if and when he requests help and to be available in case termination of self-representation becomes necessary.
In a footnote the majority in Fare.Ua clearly recognized that self-representation may be terminated by the trial judge when a defendant deliberately engages in serious and obstructionist misconduct. | [
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George Rose Smith, Justice.
In this eminent domain action the highway department is taking 7.16 acres for the relocation of U.S. Highway 67, leaving the appellees’ 26-acre tract cut about half in two by the relocated highway. In appealing from a verdict fixing the landowners’ compensation at $37,000 the highway department argues two points for reversal.
First, it is insisted that the principal landowner, B.L. Price, gave no reasonable basis for his opinion, because he “demonstrated no personal familiarity with land values in the area.” That argument is rebutted by our holding in Ark. State Highway Commn. v. Fowler, 240 Ark. 595, 401 S.W. 2d 1 (1966), where we said that a landowner, because of his relationship as owner, is competent to testify about the value of his own property “regardless of his knowledge of [other] property values.” Here Mr. Price had lived on the farm for 29 years, had cultivated it ever since the days when mules were used to propel the plow, and obviously was familiar with the land in every particular. In the circumstances it cannot be seriously said that he had no reasonable basis for his opinion about the value of the land.
Second, an unusual situation arose with regard to the testimony of one of the landowners’ expert witnesses, Terral Huff. Mr. Huff, a real estate salesman for 25 years, had made three trips to the property in 1972 in the course of appraising it. He turned his handwritten notes over to Mr. Lightle, the landowners’ attorney. After that, Mr. Huff’s eyesight was so impaired by an accident that he was no longer able to read his notes.
At the trial, after Mr. Huff had testified about his inability to read the notes, the court permitted Mr. Lightle to introduce the notes and read them to the jury. Counsel for the highway department objected on the ground that Mr. Huff admitted that he could not recall from memory sufficient details to give his opinion about the before and after value of the property. It was argued that the department’s right to cross-examine the witness was actually being denied. That objection was overruled.
If the record ended at that point the appellant’s point might be well taken. The record, however, does not end there. Counsel for the department first cross-examined Mr. Huff about what he referred to in his notes as the “nuisance” damage. The witness explained that he meant that after the taking the dwelling house would be so close to the highway that the property would be hard to sell. Huff was then questioned about the 7 '/2-acre tract that was left on the west side of the relocated highway. Throughout the cross-examination the witness’s testimony was clearly and succinctly given. We find no indication that the witness’s defective vision impaired in any way the condemnor’s right of cross-examination. In fact, there was no renewal of the objection after counsel had completed a cross-examination which, although brief, was apparently as comprehensive and as searching as counsel wished. No abuse of the court’s discretion is shown.
Affirmed. | [
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George Rose Smith, Justice.
These parties were married on December 14, 1973, and separated about 100 days later, on March 23, 1974. Separate suits for divorce, both on the ground of personal indignities, were filed on the same day and later consolidated for trial. The chancellor granted a divorce to the wife, sustained the validity of an antenuptial agreement by which each spouse relinquished all interest in the other’s property, and awarded the wife permanent alimony of $250 a month. By appeal the husband seeks a reduction in the amount of alimony; by cross-appeal the wife contends that the antenuptial agreement was contrary to public policy and therefore void.
We turn first to the cross-appeal. Mrs. Dingledine argues, on the authority of Oliphant v. Oliphant, 177 Ark. 613, 7 S.W. 2d 783 (1928), that the agreement was made to provide for the possibility of a divorce and is accordingly invalid. (See also Nelson, Divorce and Annulment, § 13.22 [2d ed., 1945]; Cathey, Ante-Nuptial Agreements in Arkansas — A Drafter’s Problem, 24 Ark. L. Rev. 275 [1970].)
We cannot sustain that contention. As we explained in Hughes v. Hughes. 251 Ark. 63, 471 S.W. 2d 355 (1971), the Oliphanl principle applies when the agreement is to be effective only in case there should be a divorce. In Hughes we upheld the contract even though it was to be controlling in the event of a divorce, because that was not its only purpose. In the case at bar the agreement makes no reference whatever to the possibility of divorce. The testimony about the parties’ intentions is in conflict. We think the chancellor was right in finding the antenuptial contract to be valid.
On cross-appeal the appellee further contends that the agreement should be construed to deprive her of an interest in her husband’s property only in the event of his death and not in the event of a divorce. The language of the agreement, however, does not support that interpretation. It recites that the prospective wife accepts the provisions of the contract “in lieu of all rights which she would otherwise acquire, by reason of the marriage, in the property or estate of Donald G. Dingledine.” If the contract is valid — and we hold that it is — its effect is not abrogated by a divorce. Lindey, Separation Agreements and Ante-Nuptial Contracts, § 90-18A (1967). In fact, that was our holding in Hughes v. Hughes, supra. We find it unnecessary to discuss the appellee’s other objections to the contract and affirm the decree on cross-appeal.
On direct appeal Dingledine insists that the allowance of $250 a month as alimony is excessive, in view of his ability to pay. Coltharp v. Coltharp. 218 Ark. 215, 235 S.W. 2d 884 (1951). According to Dingledine’s federal income tax return, his net income from his service station business in 1973 was $3,-181.31, but he admits that owing to depreciation and other factors he received more than that amount from the business. He estimated his income in 1974 as being from $500 to $1,000 a month, but he feared that gasoline shortages might have an adverse effect. He supports two minor sons by an earlier marriage. Mrs. Dingledine is an experienced bookkeeper and, according to her brief, is earning $200 a month. She has no dependents. That the marriage lasted only a few months is a circumstance to be considered. Ferguson v. Ferguson, 125 Ind. App. 596, 125 N.E. 2d 816 (1955); Thompson v. Thompson, 222 Ore. 505, 353 P. 2d 241 (1960); Taylor v. Taylor, 357 P. 2d 1112 (Wyo., 1961). Upon the testimony as abstracted it is our best collective judgment that the award of alimony should be modified by a reduction to $150 a month.
In closing, we cannot overlook the fact that the appellant’s attorney, who represented him at most of the hearings below and continues to represent him here, took the witness-stand and testified about points of fact that were disputed by the appellee. We have repeatedly admonished the members of our bar against such conduct. Montgomery v. First Nat. Bank of Newport, 246 Ark. 502, 439 S.W. 2d 299 (1969); Old American Life Ins. Co. v. Taylor. 244 Ark. 709, 427 S.W. 2d 23 (1968); Rushton v. First Nat. Bank of Magnolia, 244 Ark. 503, 426 S.W. 2d 378 (1968). Since those decisions the principle has again been stated in the American Bar Association’s Code of Professional Responsibility, adopted by this court by per curiam order on June 2, 1969. The new Code observes: “An advocate who becomes a witness is in the unseemly and ineffective position of arguing his own credibility. The roles of an advocate and of a witness are inconsistent; the function of an advocate is to advance or argue the cause of another, while that of a witness is to state facts objectively.” Code, EC 5-9; also DR 5-101 B. We are unwilling to let such a violation of the Code pass unnoticed.
Modified and affirmed, with the appellee to be allowed a $300 attorney’s fee.
Byrd, J., would reduce the alimony to $50 a month. | [
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George Rose Smith, Justice.
The appellant brought this action for personal injuries sustained when she was struck by the appellee’s car, which rolled forward from a parked position. The verdict was for the defendant. The only argument for reversal is that the trial court unduly restricted the appellant’s attorney in his voir dire examination of the jury panel about their being policyholders in a mutual insurance company writing automobile liability insurance.
Counsel first asked several questions about the jurors’ being shareholders, directors, officers, or employees of any company writing automobile liability insurance. Counsel then, in chambers, sought the court’s permission to ask this question: “Are any of you policyholders in any mutual insurance company writing automobile liability insurance policies?” The court ruled that the proposed question would not be proper.
The appellant’s brief begins: “It was a known fact to both parties and their counsel that the appellee’s automobile was insured by a mutual liability carrier whose adjuster, Keith Hulett, had made an investigation of the occurrence.” That it may have been a fact known to counsel in the trial court is immaterial here, unless the fact appears in the record. Here it does not. Counsel for the appellee relies upon the omission, as he is entitled to do; for we do not reverse the trial judge on the basis of facts outside the record.
All that the record apparently contains — and certainly all that is shown by the abstracts — is a reference to Keith Hulett as “an adjuster for the Farm Bureau.” There is no showing in the record either that the Farm Bureau is a mutual insurance company or that the trial judge knew it to be one. It is not argued that the question would have been proper even if no insurance of any kind had been involved. See Dedmon v. Thalheimer, 226 Ark. 402, 290 S.W. 2d 16 (1956). Nor need we speculate about the possibility that the trial judge might have taken judicial notice of the Farm Bureau’s status, for no such request was made in the trial court (or here).
Inasmuch as the judgment must be affirmed, we may without embarrassment to counsel mention once more the basic requirements of Supreme Court Rule 9. The rule states that the abstract or abridgment of the record should consist of an impartial condensation, without comment or emphasis, of “only such material parts of the pleadings, proceedings, facts, documents, and other materials in the record as are necessary to an understanding of all questions presented to this court for decision.” What the abstracter should strive for is to present a condensation of all the record that is necessary to an understanding of the case, but nothing more.
Here the appellant has done almost the reverse. The only question at issue is the propriety of the proposed question on voir dire, but the facts pertinent to that issue are not even touched upon in the appellant’s abstract. (The appellee supplied the deficiency.) Yet the appellant did abstract testimony about the accident itself, although those facts are irrelevant here. Thus the court has been required to read matter not pertinent to the appeal but has not been furnished with an abstract of the really material part of the record.
Affirmed.
Fogleman and Byrd, JJ., dissent.
John A. Fogleman, Justice.
I do not agree that appellant’s right to question the jurors about their connections with mutual insurance companies writing liability insurance depended upon the status of the particular insurance carrier for appellee as a mutual company. Under Arkansas law, mutual companies may qualify to write casualty insurance. Ark. Stat. Ann. § 66-4210 (Repl. 1966). Each policy holder is a member of the insurer with all rights and obligations of membership. Ark. Stat. Ann. § 66-4216 (Repl. 1966). This makes the policyholder occupy virtually the same status as a stockholder in an insurance corporation. See Ark. Stat. Ann. §§ 66-4217, 4218, 422lj 4222 (Repl. 1966). Even though the member’s liability for the obligations of the mutual company are limited, he still may have pro rata contingent liability for the discharge of its obligations, and this may be as much as six times the annual premium on his policy. Ark. Stat. Ann. §§ 66-4205 (f), 4223, 4224, 4226, 4227 (Repl. 1966). The member is entitled to dividends based upon net realized savings and net realized earnings. Ark. Stat. Ann. § 66-4231 (Repl. 1966). The member may be assessed to make good a deficiency arising when the company’s assets are less than its liabilities plus the minimum surplus it is required to maintain. Ark. Stat. Ann. § 66-4241, 4242 (Repl. 1966). Thus, there is at least some reason for a member of a mutual casualty insurance company to have a bias or prejudice against liability claims and to be extremely conservative in awarding damages. For these reasons, a personal injury claimant is well advised to exercise a peremptory challenge of any prospective juror who is a member of such a company. Of course, this thought is not original with me. It was well expressed more than 70 years ago by the Supreme Court of Iowa in Foley v. Cudahy Packing Co., 93 N.W. 284, 119 Iowa 246 (1903):
*** It is easy to understand that the interests of such companies lie on the defensive side of cases such as the one at bar. And if the defendant happen to be insured in some one or more of such companies, the interest becomes a direct and active one. That a defendant in an action of this character may be insured in some such company is immaterial of itself. But it is manifest that a plaintiff may not desire to have the jury which is to try his case made up, in whole or in part, of the agents or employes of such an insurance company. The fact of such employment would not constitute a ground of challenge for cause, but, as parties and their counsel cannot be expected to know personally every juror w'ho may be called into the box, an examination sufficiently broad should be permitted to enable a party to determine upon his peremptory challenges. “It is the general and well-established practice to allow considerable latitude in the examination of persons called to act as jurors, hot only to facilitate the discovery of grounds for cause, but to enable the parties interested to discover any peculiarity or conduct, association, character or opinion, or any predilection, of the person under examination, or other circumstance which, in the opinion of the examiner might influence the person as a juror, and affect his verdict.” State v. Dooley, 89 Iowa 584, 57 N.W. 414. ***
The record shows that appellant had been permitted to ask whether any of the prospective jurors was an officer, director, stockholder or employee of any insurance company writing automobile liability insurance or in anywise interested in an insurance company. The desired information could not possibly have been elicited by this inquiry. A mutual policyholder would not affirmatively answer such a question and appellant should have been permitted to further pursue the inquiry.
At the outset I should say that there is not the least intimation that appellant’s attorney was not acting in the utmost good faith. Permission to ask the question was sought by this attorney at benchside out of the hearing of the jury. I should also say that I do not view appellant’s argument to be so narrowly confined as it appears to the majority. The point relied upon is:
I
THE COURT ERRED IN REFUSING TO ALLOW APPELLANT’S COUNSEL TO QUESTION THE PROSPECTIVE JURORS ON VOIR DIRE ABOUT THEIR BEING POLICYHOLDERS IN ANY MUTUAL INSURANCE COMPANY WRITING AUTOMOBILE LIABILITY INSURANCE POLICIES.
In support of his argument, appellant cites 47 Am. Jur. 2d 785, Jury § 195, pertaining to the importance of knowledge by litigants of all relevant and material matters that might bear on possible disqualification essential to a fair and in telligent exercise of the right to challenge for cause or peremptorily and Dedmon v. Thalheimer, 226 Ark. 402, 290 S.W. 2d 16, where a question approved contained an inquiry similar to that appellant sought to ask.
In speaking of the scope of examination on voir dire this court has spoken clearly in Missouri Pacific Transportation Co. v. Johnson, 197 Ark. 1129, 126 S.W. 2d 931:
What are the further questions that may be asked by the court, or by the attorneys in the case? The answer is that they include any pertinent inquiry respectfully addressed through which qualification may be determined, or by which counsel, regardless of the juror’s qualification, may secure information upon which to predicate peremptory challenge. Discretion of the court, to which reference is made in the last sentence of § 16 of the initiated Act, goes to the proposition of curbing improper questioning. It does not invest trial courts with an arbitrary, all-powerful authority to transform discretion into prohibition; nor does it require that in the process of ascertaining the desired facts counsel must utilize the court as a conduit through which communication must be megaphoned to jurymen by way of the dais.
See also, Gurley v. State, 164 Ark. 397, 262 S.W. 636. We have also said in Clark v. State, 154 Ark. 592, 243 S.W. 868, where counsel sought to inquire whether proposed jurors were members of the Ku Klux Klan:
*** It does not follow, however, from the fact that the information to be elicited might not constitute disqualifying bias that appellant was not entitled to propound the inquiry. On the contrary, we think that he was entitled to make the inquiry for the purpose of determining in what he should exercise a peremptory challenge allowed by the statute. ***
The right of peremptory challenge is just as important and valuable to an accused person as the right to challenge for cause, and he is entitled to the same latitude in the examination of a proposed juror for either purpose. This examination must, however, be conducted in good faith, and is subject to the discretion of the trial judge. ***
We have said that it was proper to inquire into the attitude of a particular juror and his connection with a resolution adopted by his church commending county and court officials in their enforcement of criminal laws as a basis for intelligent exercise of peremptory challenges in a case in which the defendant was charged with operating a gambling house. Sorrentino v. State, 214 Ark. 115, 214 S.W. 2d 517. In Corley v. State, 162 Ark. 178, 257 S.W. 750, we said that a trial judge properly permitted one charged with selling intoxicating liquors to inquire into contributions made by prospective jurors to a law and order league, and into the aversions of certain veniremen to the crime of selling intoxicating liquors “because it was essential for the accused to be in possession of this information in order that he might intelligently exercise the peremptory challenges which the law gives him.”
Counsel here avoided naming any particular company in framing his question. Thus, the prohibitions emphasized in DeLong v. Green, 229 Ark. 100, 313 S.W. 2d 370, have no application. That case itself supports the inquiry appellant wanted to make. First, it was there pointed out that, in Williams v. Cantwell, 114 Ark. 542, 170 S.W. 250, the court, in disapproving the actions of plaintiff’s counsel in statements made and questions propounded to prospective jurors, because they unnecessarily advised the jurors that the defendant was insured against liability by a named company and would not be required to pay any judgment against him, had stated how plaintiff’s counsel might have conducted the inquiry, by saying:
*** Information as to any juror’s connection with any insurance company could have been obtained in a less dramatic manner by asking each of the jurors if he represented or was connected with any casualty company insuring employers against liability, or if he was connected with any insurance company, or any other proper question which might have tended to disclose whether any juror had any bias or prejudice likely to influence his verdict one way or the other; and, had any juror answered that he was so connected with any such insurance company, it would not have been improper to have permitted a more minute inquiry of such juror. ***
And then, this court, in an effort to reduce uncertainty and avoid needless appellate review in such matters, announced its preference for the simplest and fairest procedure in these words:
*** Questions about the veniremen’s insurance connections should refer only to insurance companies in general; a particular company should not be named when the information wanted can just as well be obtained by the use of general questions.
I submit that, if a prospective juror actually has an interest in an insurance company insuring a particular defendant against loss in a particular case, he is subject to a proper challenge for cause, even though the insurance company is not a party to the suit, because it has a pecuniary interest in the outcome of the case. Murphy v. Cole, 338 Mo. 13, 88 S.W. 2d 1023, 103 ALR 505 (1936) and Annot. p. 511; Annot., 56 ALR 1418, 1460, 1464, 1477 (1928).
The basis for a finding of incompetency for bias and prejudice was stated long ago. It appears in Collins v. State, 102 Ark. 180, 143 S.W. 1075, as follows:
*** In order for a juror to be competent, he should be wholly indifferent both as to the person who is tried and the case for which he is tried. He must be free from bias or prejudice or from any fixed opinion as to the merits of the case so that he will act with entire impartiality in deciding the questions of fact and in arriving at his verdict. The bias or prejudice which will render a juror incompetent to sit in a case may arise from various causes, and depends largely upon the facts and circumstances of each case. ***
A financial interest of a juror in one of the parties is certainly disqualifying. In Caldarera v. Giles, 235 Ark. 418, 360 S.W. 2d 767, we held that the endorser of a note on a bank loan made to a plaintiff to pay a debt of the plaintiff to a corporation of which the juror was a stockholder, was presumed as a matter of law to be under a disqualifying bias. The precedent cited was Gershner v. Scott-Mayer Comm. Co., 93 Ark. 301, 124 S.W. 772, where we indicated, if we did not actually hold, that an officer or stockholder of a corporation to which a party to the litigation was indebted was presumed to be under a disqualifying bias. The Chief Justice, concurring in Caldarera, appropriately said:
*** To permit one to serve on a jury, where it appears from the record that he could be financially interested in the outcome of the case, would, in my opinion, stagger the confidence of the public in our juries, and, in fact, strike at the very heart of the jury system.
My view of the matter is definitely supported by the overwhelming weight of authority. No better expression could be given than that appearing at 47 Am. Jur. 2d 903-4, Jury § 333:
*** The broad general rule is that provided that counsel acts in good faith, he may, in one form or another, question prospective jurors on their voir dire respecting their interest in or connection with liability insurance companies. It is obvious that if the plaintiff is denied absolutely the right to interrogate jurors with reference to their possible connection with or interest in insurance companies, his means of ascertaining whether causes for challenge exist, or whether it is wise and expedient to exercise his right of peremptory challenge, is materially limited and the overwhelming majority of the courts sustain the right of counsel for the plaintiff, in a personal injury or death case, so long as he acts in good faith, for the purpose of ascertaining the qualifications of the jurors, and not for the purpose of informing them that an insurance company is back of the defendant of record, to interrogate prospective jurors by one form of question or another with respect to their interest ih, or connection with, indemnity insurance companies. Right to such examination of a prospective juror is basic to an intelligent exercise of challenges for cause or peremptory challenges. Thus, if an employer is indemnified in a liability insurance company against liability for injuries to employees, an employee suing for injuries received is éntitled to know if any prospective juror is interested in the insurance company, and so it is proper to question the prospective jurors, collectively or individually, upon their voir dire, regarding any possible interest that they may have in such company. The fact that the insurance* company is not named as a party to the action is no objection, for the bias of the juror is not to be determined by this fact. Nor is it any objection to say that counsel may protect his client by using a peremptory challenge. It is his right first to learn the facts, and he must do so to exercise intelligently his right to challenge peremptorily.
See also Annot., 56 ALR 1418, 1456, et seq. (1928); 74 ALR 849, 860 (1931); 95 ALR 388, 404 (1935); 105 ALR 1319, 1330 (1936); Smith v. Star Cab Co., 323 Mo. 441, 19 S.W. 2d 467.
We have at least tacitly taken this view of such an inquiry. Even when the defendant’s attorney offered to prove that no prospective juror was connected with his liability insurance carrier’s general or local agency and that none had any interest as stockholders, we approved the trial court’s permitting plaintiff’s attorney to ask each member of the panel whether he had any connection or relationship with the named company and if he had any connection with any company that insures people against liability. Halbrook v. Williams, 185 Ark. 885, 50 S.W. 2d 243. We then said:
*** The jurors or some of them might have had some relationship or connection with the particular company mentioned or some other surety company so as to make them undesirable jurors, and still not have been connected with any agency or held any stock in the particular company. We have many times held that similar questions may properly be asked the veniremen for the purpose of intelligently exercising the right of challenge.
Other cases which clearly recognize the right to ask prospective jurors whether they had been in the employ of any company writing liability insurance or were interested as an employee, agent or stockholder of such a company in order to more intelligently exercise the right of challenge include Sutton v. Webb, 183 Ark. 865, 39 S.W. 2d 314; Bourland v. Caraway, 183 Ark. 848, 39 S.W. 2d 316; Smith Arkansas Traveler Company v. Simmons, 181 Ark. 1024, 28 S.W. 2d 1052.
I am not unaware of the holding in Morgan v. Daniels, 229 Ark. 811, 318 S.W. 2d 823 and in Malone v. Riley, 230 Ark. 238, 321 S.W. 2d 743. In Malone, the court summarily dismissed the contention on the basis of Morgan. But the court did not hold that the question was improper in either case. In both cases, the court held that there was no prejudice because, in answers to other questions, the plaintiff got more information than he was entitled to. In Morgan, the court also took into consideration the fact that when the court inquired into the interest or connection the prospective jurors had in a named company, plaintiff’s counsel showed that he was satisfied with the information obtained by failing to pursue questions he had been given permission to ask. I do take issue with language in the opinion in Morgan, wherein it was said:
*** Since any holder of a mutual policy on the panel would have recognized that his or her company was not involved, they would likewise have known that their dividend credit would not be affected by the outcome of the litigation.
In my opinion this is a non sequitur. It might be apt insofar as a challenge for cause is concerned, but it is obvious to every trial lawyer that wisdom would dictate that a mutual policyholder is an appropriate subject for peremptory challenge in a case of this sort. No advocate representing a personal injury claimant would hesitate to say that, if he knew from other sources that a prospective juror was a holder of a mutual liability insurance policy, he would be a prime subject for consideration when peremptory challenges are considered. Under our cases on scope of voir dire, such an inquiry should be permitted. Here again it is the general rule that such an inquiry should be permitted. Annot. 4 ALR 2d 761, 814 (1949). If Malone and Morgan hold otherwise, I would not hesitate to overrule them.
Neither case considered Dedmon v. Thalheimer, 226 Ark. 402, 290 S.W. 2d 16, where we reversed the judgment because the plaintiff’s attorney, in a case where an insurance company was involved, was not, as here, permitted to ask the following question:
*** Have you ever been in the employ of any liability insurance company, or do you own any stock in any liability insurance company at the present time, or are you insured with any mutual benefit liability company where your premiums are determined upon the size of judgments given in personal injury actions for the previous year?
We said:
In the trial of a civil action in circuit court in this State, each side has the right to excuse three veniremen peremptorily. In cases where the defendant is covered by liability insurance, the plaintiff might want to excuse any one that he suspects may be either biased or prejudiced where insurance is involved; and he would have a perfect right to exercise a peremptory challenge for that reason, if he so desired. The test of whether counsel may ask questions of veniremen in regard to insurance is whether the questions are propounded in good faith. If counsel, in good faith, thinks that liability insurance is involved, then he may ask questions calculated to bring to light any bias or prejudice a venireman may have for or against insurance companies. The thing works both ways: A person may have connections with an insurance company that would cause him to be biased in favor of such companies. On the other hand, a venireman may be, for some reason, prejudiced against insurance companies. A lawyer trying a case would be rather careless if he failed to ascertain as well as possible if any one on the venire was biased or prejudiced on a question involved in the litigation, even though such question would be only indirectly involved. Very seldom do lawyers on both sides know the connections and background of all the veniremen or whether they would have an opinion as to the merits of the case. And the purpose of the voir dire examination is to enable counsel to ascertain whether there is ground for a challenge for cause, or for the exercise of a peremptory challenge. Of course, questions about insurance would be improper if counsel does not in good faith believe that some insurance company is interested in the outcome of the litigation. Gill v. Whiteside-Hemby Drug Co., 197 Ark. 425, 122 S.W. 2d 597. But here, it is admitted that insurance is involved, and there is no indication of bad faith.
However the majority may view Dedmon, I view it as support for the propriety of this inquiry.
I am authorized to state that Mr. Justice Byrd joins in this opinion. | [
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J. Fred Jones, Justice.
Frank Pollard was convicted of first degree rape in the Desha County Circuit Court and was given the minimum sentence of 30 years in the penitentiary. On appeal to this court he assigns two alleged errors as follows:
“I. The court erred in admitting evidence of the defendant’s identification in a pretrial lineup, in violation of defendant’s right to counsel guaranteed by the 6th and 14th Amendments to the United States Constitution.
II. The court erred in admitting evidence obtained as a result of an unlawful search and seizure.”
We shall consider the assignments of error in the order designated and shall review the evidence in more detail in connection with the second assignment. We find no merit in the appellant’s first assignment.
The appellant was arrested on October 12, 1974. He was identified in a police lineup conducted four days later. The information charging the defendant with the crime for which he was convicted was filed on October 21, 1974.
In support of his argument that he was not represented by counsel at the pretrial lineup in violation of his constitutional rights under the Sixth and Fourteenth Amendments to the United States Constitution, the appellant relies on the United States Supreme Court decision in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926 (1967). The Wade case dealt with post-indictment lineup. In Kirby v. Illinois, 406 U.S. 632 (1972) the United States Supreme Court held that until the government has commenced prosecutorial proceedings against the defendant by indictment or informa tion, the case has not reached the “critical stage of the prosecution” where the guarantees of the Sixth Amendment are applicable. We followed the reasoning in Kirby in King v. State, 253 Ark. 614, 487 S.W. 2d 596 (1972), where this court said:
“Furthermore, a person’s right to counsel at a lineup procedure attaches only when adversary judicial proceedings are initiated against him. Kirby v. Illinois, 406 U.S. 682, 92 S. Ct. 1877, 32 L. Ed. 2d 411. In the case at bar the appellant was charged by an information after the assertedly unconstitutional lineup procedure; therefore, since the lineup procedure, following appellant’s arrest, preceded appellant’s being formally charged with any criminal offense, the proceeding was not ‘a criminal prosecution’ at which he had a constitutional right to be represented by counsel. Kirby v. Illinois, supra.”
In support of his first assignment the appellant also argues that the lineup was unnecessarily suggestive because the prosecuting witness observed the accused coming from the jail cell area prior to the lineup; that Tresha McGhee and Jacqueline Davis viewed the lineup at the same time, and that Jacqueline Davis was more definite as to identification at the lineup than was the victim, Tresha McGhee. We do not agree that the mere fact that the witnesses saw the appellant walking from the cell area to the lineup was suggestive because the witnesses also saw other participants coming to the lineup from the same area. In King v. State, 253 Ark. 614, 487 S.W. 2d 596 (1972), where a witness had seen the accused wearing handcuffs prior to seeing him in the lineup, we said:
“There is no evidence this incident and the momentary observation and recognition by the prosecutrix was anything other than co-incidental. Nothing was said or done by anyone to unduly direct any attention toward the appellant as being the assailant.”
“A very substantial likelihood of irreparable misidentification” was the evil to which Stoval v. Denno, 388 U.S. 293 (1967), was directed and it’s this likelihood which violates a defendant’s right to due process. Neil v. Biggers, 409 U.S. 188 (1972). In Neil the United States Supreme Court pointed out that the “totality of circumstances” is to be considered in determining whether a showup or a lineup presents a substantial likelihood of irreparable misidentification, and in Neil the court said:
“We turn, then, to the central question, whether under the ‘totality of circumstances’ the identification was reliable even though the confrontation procedure was suggestive. As indicated by our cases, the factors to be considered in evaluating the likelihood of misidentification include the opportunity of the witness to view the crime, the witness’ degree of attention, the accuracy of the witness’ prior description of the criminal, the level of certainty demonstrated by the witness at the confrontation, and the length of time between the crime and the confrontation. ”
Both of the prosecuting witnesses in the case at bar testified that they had seen the appellant playing basketball on a court near the victim’s home and recognized him by voice and appearance during the commission of the crime. By the appellant’s own election at the trial a confrontation in open court was avoided for the express purpose of avoiding the possibility of in-court identification. The appellant testified that the victim Tresha McGhee and the prosecuting witness Jacqueline Davis were together when they viewed the lineup in which he participated. There was other evidence, including the testimony of the identifying witnesses, that they viewed the lineup separately. We conclude that the possibility that either Tresha McGhee or Jacqueline Davis identified the wrong man in the lineup is remote and we find no merit to this contention.
As to appellant’s second assignment, we conclude that the judgment must be reversed and this case remanded for a new trial. There is no question that Tresha McGhee, a 12 year old child, was the victim of a vicious rape some time after midnight on October 12, 1974. The uncontraverted evidence is to the effect that Tresha McGhee and her 14 year old cousin Jacqueline Davis were sleeping together in Tresha’s bedroom in her mother’s home on the night of October 11; that some time after midnight Tresha was awakened by a man who carried a long barrel gun and had a towel around his head or over part of his face. The bathroom light was on in the house and the intruder struck Tresha on the head with the barrel of the gun while demanding that she get out of bed and go with him.
Tresha testified that when she was first awakened by the intruder’s demands, she thought it was someone playing a joke, but that her cousing Jacqueline was also awakened and advised her to do what the man said. She said she did as the man demanded and that he took her from the house through the backdoor. She said she got a “pretty close look” at him as they passed between the lighted bathroom and the kitchen, and that she had seen him previously playing basketball at a basketball court near her home. She said the man took her about a block from her home to near a church house where he raped her and threatened to kill her if she didn’t stop crying. She said as an automobile passed near them, she was forced to hide behind some trees in a vacant lot; that she was then taken across the street through some briers and brush to a grassy area where she was again raped. She said her assailant warned her against telling anyone about what had happened and then let her go. She said she ran toward her home and was picked up in a car by a friend of her mother who was out searching for her. The victim was taken immediately to a hospital where the rape was medically and unquestionably confirmed.
Deputy Sheriff Roy Hogg testified that about 1:15 o’clock on October 12 he received a call pertaining to the alleged rape, and that he made the initial investigation. He said he observed a garbage can turned upside down on a folding chair outside the bathroom window where the screen had been removed, and that he dusted various items for fingerprints and then returned to the police station where he studied his notes until daylight. He said that after daylight he returned to the victim’s home and retraced with her the route followed when she was taken from her home. He said the route pointed out to him led approximately three blocks from the girl’s home to the rear of a church house on Cherry Street where the victim pointed out the spot where she was raped. He said the route then continued southwest for approximately two blocks and through some blackberry briers on the rear of a lot behind a dwelling house off Cherry Street, where the prosecuting witness pointed out the spot where she was again raped. He said the two girls told him the man’s name was Frank and he and the chief of police had been driving around all morning looking for the appellant. He said they took him into custody about 11:00 o’clock on October 12 when they found him standing about 150 or 200 feet across the street from the victim’s home. He said the appellant was identified in the lineup by Tresha and also by Jacqueline. The record then recites as follows:
“Q. Did Tresha McGhee give you a description of what he was wearing?
A. Yes, sir.
Q. And based upon that description did you recover any clothes that he was wearing on the early morning hours of October the 12th?
A. Yes, sir, I did.
Q. When this occurred? And where did you recover them?
A. At Mr. Chapman’s house where Mr. Pollard was staying.
Q. Okay, and what did you recover?
MR. GIBSON: I object, Your Honor, unless it is shown these items were recovered as a result of a lawful search. He hasn’t laid the foundation for the introduction of this type of evidence.
THE COURT: The question before the Court now is, what did you recover? He hasn’t offered any items. I think the question is permissible. I will overrule your objection.
MR. GIBSON: Note our exceptions.
Q. What did you recover?
A. A pair of light tan pants.
Q. Light tan pants?
A. Yes, sir.
Q. And who owned the house there?
A. Mr. Chapman.
Q. And did you determine from your investigation that’s where the defendant lived?
A. Yes, sir.
Q. And did you determine from your investigation whether or not the defendant had these particular pants on the early morning hours of 1:00 o’clock?
MR. GIBSON: I am going to object to that, that calls for a conclusion.
THE COURT: Sustain the objection.
Q. And you said that’s where Mr. Pollard lived?
A. Yes, sir.
Q. And you recovered a pair of tan trousers?
A. Yes, sir.
Q. Okay, now then, the second place that you described Tresha took you to describe the terrain from the church to this second point?
A. It was vacant lots and what I would call fence rows where the edge of the property would have hedge rows and brier vines.
Q. Okay, these trousers that you recovered at Chapman’s house, what kind were they?
A. They were dress trousers.
MR. GIBSON: Now, Your Honor, I am going to object about any more testimony about these pants unless it is shown they were seized as a result of a lawful search, and it’s already been testified to that they were recovered from where this defendant lives and I assume at the time they were recovered he was in jail.
THE COURT: I sustain the objection.”
The appellant testified in his own defense. He said he was staying with his grandfather, Frank Chapman, in Dumas and had been in the area about ten months. He said he did not know Tresha McGhee or the other prosecuting witness. He said he had seen Tresha playing basketball but that he had never talked to her. He testified on direct examination that on the night in question he was at a cafe across town about six blocks from where he played basketball; that he got into an altercation with a boy named Dan Davis and another boy, and that about six boys jumped on him and interrupted his fight with Davis. He said one of the boys in the fight ran away and jumped a fence and that he later saw another one of the boys he had had trouble with at another cafe and he told him to wait until he came back. He said he then went to his cousin’s house and obtained a .20 gauge shotgun with the intention of finding the boys and scaring them with the shotgun. He said he walked over town a lot looking for the boys; that he searched for his assailants until 3:00 or 4:00 o’clock in the morning of October 12. He said he was unable to find the boys so he hid his shotgun near a church house on Cherry Street and spent the rest of the night in the house of a friend named Jessie Malone. He said he got up from bed at his friend’s house about 9:00 o’clock on October 12, and then he testified as follows:
“Q. All right, and then what did you do?
A. I went over to my grandfather’s house and changed clothes because the clothes I had on had blood stains in them from where the boys jumped on me the night before and bloodied my nose and I went over to my grandfather’s house and changed clothes and then I went downtown and looked for Dan Davis because we was going to fight fist to fist I’ll say, but I never did see him, so I went back over to my cousin’s house that next morning after I left out from downtown and he was in the house so I went in and we talked and I went to use the restroom and I came back out and a boy named, they called him Jelly, I don’t know, Robert Turner, we saw him there.
Q. Who?
A. Robert Turner, they call him Jelly.
Q. All right.
A. And so Robert Lee was telling Jelly that a girl had been raped last night and so I came out of the restroom and I asked him what did he say. ...”
This hearsay was objected to and the objection sustained. The appellant then continued as follows:
“Q. All right, forget that conversation, what did you do then?
A. So I went out to the car and the next thing I know Sheriff Hogg and Chief Morgan drove up and they asked me about a shotgun, they said, ‘Where that shotgun we heard you had last night.’ And so I told them I didn’t have a shotgun, and they took me down to City Hall and Sheriff Hogg told the Chief to lock me up and Sheriff Hogg told me that he was holding me on investigation. So they locked me up and I stayed under investigation for three days before I knew anything, then the fourth day they brought Tresha and her cousin up to identify me, and they had I guess four or five other boys off the street and they had two drunks up there, and I didn’t hear the conversation what they were saying and we had numbers and they brought her back in and she took a brief look, they came in at the same time and she took a brief look and. they left back out and went back downstairs and I don’t know what they told them, but anyway they carried me back down and locked me up and the next two days or so they brought warrant issued to me and said I was charged with rape.”
On cross-examination of the appellant by the state’s attorney the record is as follows:
“Q. What kind of trousers were you wearing on the night of October the 12th?
A. Well, they was white or beige looking.
Q. White and beige looking?
A. Right.
Q. Did they have a cuff on?
A. Yes they did.
Q. And when did you say you pulled these clothes off?
A. The next morning.
Q. The next morning?
A. The next morning.
Q. And where did you pull them off?
A. Over at my grandfather’s house, Frank Chapman’s.
Q. Would you look at these and see if those are . . .
MR. GIBSON: Now, Your Honor, I would want to object unless he can show how he got those clothes.
MR. TRAFFORD: I just asked him to see if he could identify them.
THE COURT: Overrule your objection.
MR. GIBSON: Sir?
THE COURT: Overrule your objection.
MR. GIBSON: Note our exceptions.
A. Yes, these are mine.
Q. Those are your trousers?
A. Right.
Q. These are the ones that you had on the night of October the 12th, is that correct?
A. That is correct.
Q. And you pulled them off at your grandfather’s house th. next morning?
A. I did.
Q. And they are a beige color?
A. Well, to me they are beige. To you?
MR. TRAFFORD: Your Honor, I would offer these into evidence as plaintiff’s exhibit No. 1.
MR. GIBSON: I object, Your Honor, because the sheriff’s testimony is that he just went in the house and got these without a search warrant. Now they have been introduced and it’s proof of unlawful search and seizure.
THE COURT: Let them be introduced.
MR. GIBSON: Note my exceptions.”
On cross-examination the appellant admitted that he did not tell the sheriff or other officers about the individuals assaulting him, and that he denied to them he had a gun. On cross-examination he testified that he continued to carry the gun for about 30 minutes after he obtained it, and that he hid it in some bushes near a church on Cherry Street. He denied that he had been through any brier or thickets and his testimony on cross-examination continued as follows:
“Q. Did you run through those brushes and briers?
A. No.
Q. Did you walk through them with these trousers?
A. I wasn’t in the brushes.
Q. Well, you had these trousers on though didn’t you?
A. Yes.
Q. And did you run through some briers? Do these knit breeches have snags in them?
A. Yes, they had snags in them.
Q. They had snags in them?
A. Yes, sir.
Q. Well, would that indicate that you run through some briers ?
MR. GIBSON: I object to that question, it calls for a conclusion.
THE COURT: Sustain the objection.
Q. Now, did you go back and get this shotgun any time during the night?
A. I did.
Q. About what time?
A. Ah, I say about one I went back and got it.
Q. You got it about one o’clock?
A. I did.
Q. Did you give it to the police officers?
A. No I didn’t.
Q. Did you tell them where it was?
A. No I didn’t.
Q. Did you tell them you had a shotgun?
A. No I didn’t.
Q. Why didn’t you?
A. Well, for the simple reason that I had heard that Tresha had been raped that night and they was looking for someone with a shotgun.”
The appellant admitted that he attempted to escape from jail. He said his purpose in attempting to escape was that he wanted to prove his innocence as to the rape charge. He then testified that he had known both Tresha and Jacqueline by sight but did not know them by name. He said they also knew him by sight; that they had seen each other while playing basketball.
The arguments to the jury were transcribed and in the opening argument for the state appears the following:
“Tresha also told us that the man was wearing beige colored pants. The defendant, upon questioning on cross examination verified that he had on a pair of beige trousers that night, that he pulled these off at his grandfather’s the next morning about 10:30 in the morning, and this is what he was wearing, and this is what Tresha and Jackie said he had on, beige colored trousers. Tresha said they went through a brier patch in them, as you recall, over next to the church, south of the church. You will notice the snags in the knit trousers. What does this indicate to you? You will notice the snags all over the trousers. When you walk through briers normally, particularly with knit, you normally snag them pretty badly.”
In the closing argument the state’s attorney, referring to the appellant, argued as follows:
“He comes in with his beige pants. There was light to see beige pants, light to see the color of a man’s pants whether coming in or going out. The little girl who was sleeping with Tresha saw her leave, she immediately went to tell, there was light coming in the bathroom and they say the man had beige pants, and that’s what he said he had. ‘This is the pants that I was wearing that night’ is further evidence.”
The state contends on appeal that the admission of the trousers into evidence over appellant’s objection was not prejudicial since the facts that the trousers tended to establish were admitted on cross-examination. We do not agree. The appellant denied that he waded through brush or briers while wearing the trousers on the night of the crime and it was apparently obvious the trousers had been worn through briers or brush. No testimony was elicited as to blood stains appearing anywhere on the trousers accepted in evidence, but it must be remembered that the appellant testified he got blood on his trousers from his bleeding nose, and that was the reason he changed clothes at his grandfather’s house. The trial court sustained the appellant’s objection to the introduction of the trousers by the state on direct examination of the officer who obtained the trousers from the appellant’s grandfather’s home. The state was then permitted to do indirectly what the court correctly had ruled it could not do directly. See Anderson v. City of El Dorado, 243 Ark. 137, 418 S.W. 2d 801.
The state contends on appeal that if admitting the trousers was prejudicial, the judgment of the trial court should not be reversed, but that the cause should be remanded to the trial court for an evidentiary hearing to determine whether in fact the trousers were the fruit of an illegal search and seizure. The proper time for an evidentiary hearing is before the evidence is admitted and considered by the jury. It appears from the record that the state had ample opportunity to establish the legality of this evidence when the trousers were first offered in evidence during the direct testimony of Deputy Sheriff Hogg. Officer Hogg testified that the trousers were obtained from Mr. Chapman’s house where the appellant Pollard was staying and the objection which was sustained to their introduction was premised, “unless it is shown these items were recovered as a result of a lawful search,” and the proper foundation laid for the introduction for this type of evidence. It would have been a simple matter to have asked Officer Hogg, preferably in chambers, just how he went about obtaining the trousers from Mr. Chapman’s house.
When the appellant objected to the introduction of the trousers for the reason they were the product of an unlawful and unreasonable search and seizure, (see Walton & Fuller v. State, 245 Ark. 84, 431 S.W. 2d 462 [1968]) and the objection was properly sustained by the trial court, the state then had the burden of offering proof of the competency of the evidence before it could again be offered and accepted either on direct or cross-examination of witnesses. The state made no effort to produce a search warrant or show that Mr. Chapman or anyone at his residence, consented to the search in which the trousers were obtained. See Dickson v. State, 254 Ark. 250, 492 S.W. 2d 895 (1973). It is true that one who seeks to suppress evidence on the ground that the state violated his constitutional rights in making a search has the burden of establishing the defect in the search warrant used. Prichard v. State, 258 Ark. 151, 523 S.W. 2d 194 (1975). But in the case at bar the appellant contended there was no search warrant at all, or permission to search.
The state cites Williams v. State, 250 Ark. 859, 467 S.W. 2d 740 (1971) for the proposition that the introduction of the trousers was harmless error. The Williams case is not in point since in that case it was not even contended that the alleged prejudicial evidence was seized through an illegal search, or was the product of a violation of the Federal Constitution. Where the invasion of rights guaranteed by the Federal Constitution is involved, we are obliged to follow the harmless constitutional error rule set forth in Chapman v. California, 386 U.S. 18 (1967). The Chapman case involved the failure of the accused to testify but in formulating the rule the United States Supreme Court referred to the case of Fahy v. Connecticut, 375 U.S. 85 (1963), a case involving unreasonable search and seizure, saying:
“There is little, if any, difference between our statement in Fahy v. Connecticut about ‘whether there is a reasonable possibility that the evidence complained of might have contributed to the conviction’ and requiring the beneficiary of a constitutional error to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. We therefore, do no more than adhere to the meaning of our Fahy case when we hold, as we now do, that before a federal constitutional error can be held harmless, the court must be able to declare a belief that it was harmless beyond a reasonable doubt. While appellate courts do not ordinarily have the original task of applying such a test, it is a familiar standard of all courts, and we believe its adoption will provide a more workable standard, although achieving the same result as that aimed at in our Fahy case.”
The trousers involved in the case at bar were obtained from the appellant’s home. Their introduction into evidence was objected to because they were obtained through an illegal search without a warrant or consent. The objection was sustained by the trial court but, nevertheless, the trousers were admitted into evidence without an evidentiary hearing. We are unable to say the error was harmless especially in light of the emphasis placed on their condition by the state’s attorney. Certainly the state failed to prove beyond a reasonable doubt that the error complained of did not contribute to the verdict obtained. (Chapman, supra). We conclude, therefore, that the judgment must be reversed and this case remanded for a new trial.
The judgment is reversed and the cause remanded. | [
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Georoe Rose Smith, Justice.
Smart Chevrolet Company, after having repossessed and resold a car which it had originally sold to McArthur Davis, brought this suit against Davis for a deficiency judgment. Davis filed a counterclaim against Smart (the dealer) and a third-party complaint against General Motors Corporation (the manufacturer), asserting breaches of warranty. General Motors succeeded, upon the pleadings alone, in obtaining a dismissal of the third-party complaint against it. This appeal is from the order of dismissal. Inasmuch as that order affects a substantial right and strikes a pleading, it is an appealable order within the terms of the statute. Ark. Stat. Ann. § 27-2101 (Supp. 1973).
The dismissal came about in this way: The original sum mons was served upon Davis on April 10, 1974. On April 24 Davis filed an answer to the complaint, a counterclaim against Smart, and a motion “pursuant to Arkansas Statutes, Section 34-1007,” for leave to make General Motors a party and to serve a summons and third-party complaint upon that corporation. On April 30 the trial court entered an order which, without making any reference to the statutes, directed that General Motors be made a party to the case. On May 6 Davis filed his third-party complaint against General Motors, seeking damages for breach of warranty. Counsel for General Motors, in asking that Davis’s third-party complaint be dismissed, pointed out that Davis’s motion of April 24 had cited a section of the Uniform Contribution Among Tortfeasors Act, Ark. Stat. Ann. § 34-1007 (Repl. 1962). Counsel asserted that General Motors was not a joint tortfeasor and that the third-party complaint should therefore be stricken.
The motion to strike the third-party complaint should have been denied. Obviously Davis’s motion for leave to bring in General Motors was in error in its reference to the Uniform Contribution Among Tortfeasors Act, because Davis was asserting a cause of action against General Motors, not a claim for contribution. The third-party complaint itself made that fact perfectly clear. Davis was entitled to file that pleading. Ark. Stat. Ann. § 27-1134.1 (Supp. 1973). There is no possibility whatever that General Motors was misled by the superfluous reference to the Uniform Act. The error must therefore be disregarded, as it does not affect the substantial rights of General Motors. Ark. Stat. Ann. § 27-1160 (Repl. 1962).
Reversed. | [
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Conley Byrd, Justice.
This action was commenced by appellant Abb Johnson pursuant to Ark. Stat. Ann. § 85-4- 301 et seq. (Add. 1961), to recover from appellee Eudora Bank (hereinafter referred to as “Bank”) upon a $2,500 check executed by appellee Myrtle Handie to Johnson. The check had been sent through the Commercial Bank and Trust Company in Monticello on or about March 17, 1972, and the Eudora Bank had held the check as a cash item until September 29, 1972, when it stopped payment at the request of Handie. The “Bank” admitted that Handie had executed the check but denied that the check was deposited in Johnson’s account or that the “Bank” had improperly dishonored the check. In addition the “Bank” by way of cross-complaint alleged that the check was executed for the purchase of a car and that it had been held at the request of Handie until Han-die received the title papers to the car. The “Bank” prayed that if Johnson should have judgment against it, it should have judgment with a purchase money lien over against Han-die.
Handie answered the cross-complaint of the “Bank” and by way of counterclaim alleged that Johnson, his agent, servant or employee had misrepresented the condition of the automobile and that he had failed to deliver legal title. By way of relief Handie sought damages in the amount of $3,500.
The trial court ruled that Johnson was entitled to a judgment against the “Bank” in the amount of $2,500 but that in the event the jury should grant Handie a rescission of the purchase contract between her and Johnson, then Johnson would be entitled to possession of the automobile upon restitution of $570 downpayment and the judgment against the “Bank” would be set aside. The jury found the issues in favor of Handie and from a judgment entered thereon Johnson appeals setting forth the following points for reversal, to-wit:
“POINT I. The lower court erred in not granting the appellant’s motion for directed verdict and motion for judgment notwithstanding the verdict, against the appellee, Handie.
POINT II. The lower court erred in giving court’s Instruction No. 16.
POINT III. The lower court erred in overruling the appellant’s motion for directed verdict against the appellee, “Bank,” and further erred in granting to the “Bank” the right of subrogation.”
POINT I. Under this point Johnson contends that there is no substantial evidence to support the jury’s finding that Jim Livingston d/b/a West Side Motor Company was his agent, servant or employee. We find no merit in this contention. The record shows that from 1962 to 1965, Johnson owned and operated a used car lot in Pine Bluff and that during part or all of that time Jim Livingston worked for him as a salesman. At the time of the occurrence herein, Johnson was a salesman for Trotter Ford, a new and used car dealer in Pine Bluff, and as such would not have been permitted to operate a used car lot while in Trotter’s employment. Jim Livingston had little or no financial means and depended upon Johnson to finance the operation of West Side Motor Company. Handie purchased the automobile in question from Jim Livingston d/b/a West Side Motor Company, but when Livingston made out or filled in the check signed by Handie, he filled in Johnson’s name without any mention of West Side Motor Company. However, when Livingston filled in the title papers he showed West Side Motor Company as the seller-dealer. Because West Side Motor Company did not have an automobile dealer’s license, the State Motor Vehicle Division would not accept the title that Livingston had given to Handie. Sometime in August, the “Bank” received a substitute title from Hertz Rent-a-Car made out to Handie. When the “Bank” notified Handie to come in and consummate her financial arrangements for the automobile loan, she then requested that the “Bank” stop payment on the check.
Johnson testified that he only floor-planned the automobiles for Livingston for $100 on each automobile purchased and that to do that he had made financial arrangements with a Monticello bank. He stated that Livingston would go either to St. Louis or New Orleans and buy a number of automobiles. Livingston’s vendor would send the titles with a sight draft to Livingston’s bank who would pay for the titles, then the title would be sent to Johnson’s bank at Monticello who would pay Livingston for the titles by extending credit to Johnson. In turn Johnson’s bank would release the titles when Livingston paid the amount of the floor-planning on each automobile. Johnson could not say whether he had ever seen the title to the car here involved. Livingston on the other hand testified that he would go to New Orleans and purchase a quantity of automobiles and cause sight drafts and the titles to be sent directly to Johnson’s bank in Monticello. Reginald Glover, an employee of the Monticello bank testified that he only did business with Johnson and knew nothing about West Side Motor Company.
Thus when we consider that Livingston had previously worked for Johnson; that he had little or no financial means; that Livingston purchased automobiles and sent sight drafts through Johnson’s bank; and that the check in question was made out to Johnson by Livingston, we find that there is substantial circumstantial evidence to support the jury’s finding that Livingston was Johnson’s agent.
POINT TI. As far as the record shows the first time Handie claimed the right to rescind the contract occurred after all parties had rested. Thus Johnson had no opportunity to determine whether Handie, who had the use of the automobile during the time from March through September of 1972, had properly revoked her acceptance of the delivery of the property and had no occasion to make inquiries with respect thereto. Consequently, we find that the trial court abused its discretion in considering the pleadings as amended to conform to the proof when it gave instruction No. 16. It must be remembered that the proof here admitted would also have been admissible to prove the damage issue prayed for and therefore no objection could have been sustained to the admissibility of the evidence.
POINT III. Johnson here contends that the “Bank” should not be allowed the right of subrogation to Handie’s rights against Johnson, under Ark. Stat. Ann. § 85-4-407 (Add. 1961). We need not consider the provisions of the Uniform Commercial Code with reference to subrogation because subrogation is not here involved. The record shows that Johnson at the trial conceded that his $2,500 judgment against the “Bank” could be reduced by the amount that Handle should recover against him. Consequently, the trial court committed no error in accepting the parties’ practical solution in offsetting the conflicting judgments.
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J. H. Evans, Special Chief Justice.
For convenience the appellants will be referred to as “Peek and Vassaur” and the appellee as “Kennedy”. Peek and Vassaur were two of the appellants and Kennedy was one of the appellees in J. L. McEntire & Sons, Inc. v. Hart Cotton Company, Inc., 256 Ark. 937, 511 S.W. 2d 179, decided on July 8, 1974. This appeal grows out of the proceedings of the McEntire case in which this court affirmed the trial court’s declaratory judgment that certain written contracts between Peek and Vassaur, as sellers, and Kennedy, as buyer, were valid agreements. Under these contracts Peek and Vassaur had agreed to sell Kennedy their entire 1973 cotton crops for a specified price.
The facts are not in dispute on this appeal. Pending a decision on the appeal by Peek and Vassaur in the McEntire case, in which they did not post a supersedeas bond, they made a written tender to Kennedy to deliver the cotton under a reservation of rights under Ark. Stat. Ann. § 85-1-207 (Add. 1961). In this letter Peek and Vassaur stated that if the contracts were declared invalid upon appeal that Kennedy, by accepting delivery, would be guilty of a tortious conversion and they would be entitled to damages as set forth in New-burger Cotton Company v. Stevens, 167 Ark. 257, 267 S.W. 777 (1925). Kennedy refused to accept delivery and perform under these conditions and promptly filed suit for specific per formance, which was granted by the trial court in November of 1973. Peek and Vassaur took this appeal and did not supersede the order.
Peek and Vassaur contend they had the right to tender performance and reserve their rights under § 85-1-207 to sue Kennedy for tortious conversion if the contracts were declared invalid upon appeal in the McEntire case. Since Kennedy refused to perform under these conditions, Peek and Vassaur claim Kennedy breached the agreement, thus relieving them of the duty to perform. The relief they seek is a reversal of the decree of specific performance and that the cause be remanded for restitution proceedings in their favor. Kennedy contends § 85-1-207 had no application and that Peek and Vassaur were imposing conditions to their tendered performance on which they had no legal right to insist. Kennedy further contended that if Peek and Vassaur did not wish to perform they could have posted a sufficient supersedeas bond and disposed of their cottton in any manner they chose.
We agree with Kennedy’s contentions. There is very little authority available as to the meaning of § 85-1-207, which is as follows:
“A party who with explicit reservation of rights performs or promises performance or assents to performance in a manner demanded or offered by the other party does not thereby prejudice the rights reserved. Such words as “without prejudice”, “under protest” or the like are sufficient.”
However, our view of the situation does not require an interpretation of this statute as we believe it has no application in this instance. This section appears in the General Provisions Chapter of the Uniform Commercial Code and obviously is intended to apply only to transactions falling under the provisions of the code. The rights which Peek and Vassaur had, in the event of a reversal of their appeal in McEntire, were fixed by Ark. Stat. Ann. § 27-2153 (Repl. 1962), which is as follows:
“If any judgment of the Circuit Court shall be reversed by the Supreme Court on writ of error or appeal, and such judgment may have been carried into effect before the reversal thereof, such defendant may recover from the plaintiff in such judgment the full amount paid thereon, including costs, by an action (of the debt or on the case) for so much money had and received to his use.”
Ark. Stat. Ann. § 27-2156 (Repl. 1962) makes the provisions of § 27-2153 applicable to cases in Chancery. Where, as here, the delivery of property rather than a money judgment is involved, these statutes have been construed to provide for restitution of the identical property upon reversal, and if this cannot be done, then a recovery may be had for the value of the property. Mothershead v. Douglas, 219 Ark. 457, 243 S.W. 2d 761 (1951); Dodson v. Butler, 101 Ark. 416, 142 S.W. 503 (1912). The rights of Peek and Vassaur upon appeal in McEntire were fixed, as a matter of law, by these statutes and court decisions and they could have performed pending their appeal without losing these rights. Obviously, § 85-1-207 had no application to the situation.
If the contracts had been held invalid on appeal in the McEntire case Kennedy would not have been guilty of a tor-tious conversion as claimed by Peek and Vassaur in their tender of performance with reservation of rights. Berthold-Jennings Lumber Company v. St. Louis, I.M.&S. Railway Company, 80 F. 2d 32 (8th Cir 1935); Dodson v. Butler, supra; 5 Am. Jur. 2d 424, Appeal and Error, § 997. In Dodson v. Butler at page 421 of 101 Ark. the following statement is made in this regard:
“But an erroneous judgment is valid until it is reversed. By the rendition of such judgment, it is the Court which makes the mistake, and not the party in whose favor it is rendered. The judgment, though erroneous, is not void, and protects all persons acting under it until it is reversed.”
The measure of damages under § 27-2153 and court decisions thereunder is different from damages growing out of a tortious conversion of cotton. Therefore, Peek and Vassaur, under the conditions they imposed, had no right to require performance by Kennedy. Also, Peek and Vassaur could have avoided performance by posting a supersedeas bond, which they chose not to do.
Affirmed.
Harris, C.J., and Fogleman and Byrd, JJ., disqualified and not participating. Special Justice Henry Woods and Special Justice Winslow Drummond join in the opinion. | [
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Frank Holt, Justice.
Appellants were charged by information with murder in perpetration of an attempt to commit robbery. Ark. Stat. Ann. § 41-2205 (Repl. 1964). The jury found them guilty of murder in the first degree and assessed their punishment at life imprisonment in the Department of Correction. Appellants first assert for reversal that the evidence is insufficient because there is no substantial evidence from which the jury could find that murder resulted from an attempt to perpetrate robbery. Upon appellate review, it is firmly established that we consider that evidence which is most favorable to the appellee, with all reasonable inferences deducible therefrom, and affirm if any substantial evidence exists to support the jury verdict. Miller v. State, 253 Ark. 1060, 490 S.W.2d 445 (1973).
A witness for the state, Bullock, testified that he met the appellants at a party. Later that evening, he, appellants, and others went to the victim’s apartment “ [T]o take some dope” and we would get it with a gun “[I]f it was necessary.” Appellant McGhee was armed with a .38 caliber pistol and appellant Stewart carried a sawed-off shotgun. The state’s witness testified that he saw McGhee pull his pistol on the victim who then put his hands up. Thereupon, Stewart was observed jumping over a porch railing and the shotgun he was carrying discharged. The witness then heard several small caliber shots. Another witness for the state, who was living with the victim, testified that she heard “a loud shot and then three other shots.” The victim fled to their apartment where she observed him “covered with blood.” He spontaneously told her “that as soon as he [the victim] opened the door this one kid was standing there and flashed this money in his face for some reason, and then this other one, this little one, jumped onto the porch with a shotgun and shot him and he turned to run up the stairs and then the other one shot him three times with the pistol.”
Appellants Stewart and McGhee made separate written statements which were read to the jury subsequent to Bullock’s testimony. Neither testified. Stewart admitted in his statement that he was armed with a shotgun and accompanied his codefendant, McGhee, and others in furtherance of the plan to rob the victim. McGhee admitted in his statement that he accompanied his codefendant, Stewart, and others to the victim’s apartment and that he, McGhee, was armed with a .38 caliber pistol. As soon as the victim opened the door, he, McGhee told him he wanted to buy some dope and that “Danny” had sent him. During the discussion, one of the group said “if he won’t sell it to us we’ll just take it.” A blast from a shotgun followed and thereupon “he [McGhee] grabbed the pistol from my rear pocket and struck Lenoris [a companion] in the face, so he wouldn’t shoot. As I slapped at Lenoris, the pistol did go off, but I’m not sure when it struck.”
Certainly the state adduced ample substantial evidence that would justify the jury in finding the appellants committed murder in an attempt to perpetrate robbery. They went heavily armed to the victim’s residence where they confronted him at the door. When the victim “throwed his hands up,” he was wounded by a shotgun blast into the right side of his chest and wounded in other areas of his body from two pistol shots. The “transaction had gone beyond intent and preparation and had passed into acts which amounted to an attempt at robbery.” Turnage v. State, 182 Ark. 74, 30 S.W.2d 865 (1930).
Appellants next contend that the court erred in admitting evidence of an autopsy not performed by the state medical examiner or one of his authorized assistants in violation of the defendants’ state and federal constitutional rights. Ark. Stat. Ann. § 42-611, el seq, establishes the office of state medical examiner and prescribes the duties and the stringent qualification required of that individual. The present medical examiner meets the statutory requirement and is a forensic pathologist based upon specialized training. § 42-623 provides that records and reports made under authority of the act “shall be received as competent evidence .... upon being properly attested.” § 42-615 requires that the state medical examiner be notified whenever a person dies from violence or under unusual circumstances. Appellants assert that the purpose of this statute is to give the state medical examiner, a medico-legal expert, the exclusive authority, here, to conduct the postmortem examination. Therefore, an autopsy performed without this authority is inadmissible evidence.
We do not construe the statute to absolutely prohibit another doctor, who is competent to do so, from performing an autopsy and then testifying. The purpose of the act, and properly so, was to create a scientific and uniform method of investigating violent and unusual deaths. In State v. Ruggiero, 93 R.I. 241, 174 A.2d 555 (1961), the proper statutory procedure was not followed and the court said:
These contentions lack merit. A careful reading of Chap. 23-4 shows clearly that it does not apply to matters affecting the admissibility of evidence. It has no bearing on the question of the admissibility of the testimony of a medical expert who is otherwise qualified to perform an autopsy, or on the admissibility of the autopsy report prepared by such medical expert.
In the case at bar, the victim was taken to a local hospital suffering from a shotgun blast to the right chest and pistol wounds to the wrist and kriee. Following removal of the right lung by his personal physician, the victim was placed in intensive care. Five days later additional surgery was required to remove several ribs to curtail infection. Five days later while still in intensive care, the victim suddenly died. Without notifying the state medical examiner, the victim was partially embalmed and then an autopsy was performed by an anatomical pathologist at the hospital in the regular course of his duties there. His training does not meet the strict statutory standard required of a state medical examiner. However, he has performed over 300 autopsies in addition to testifying in court. This pathologist testified that the victim died from a blood clot in the pulmonary artery and that the blood clot resulted from either the surgery or the gunshot wound which required the surgery. Needle marks were found in the victim’s legs which appellants assert indicate he was a drug user. The doctor testified that an improper injection of drugs could have caused death and the, embalming procedure could have nullified the presence of drugs. Regardless, we perceive no prejudice to the appellants based upon this pathologist’s testimony. Furthermore, it was cumulative to the testimony of the victim’s attending physician, who observed the victim each day. He testified:
Q. What in your opinion, was the cause of death of Nicholas Papadoplas?
A. Nicholas Papadoplas died of a pulmonary embolism, which is secondary to the gunshot wound of the chest.
The surgeon who operates on and attends the victim may give an opinion as to the cause of death without reference to an autopsy. McClendon v. State, 197 Ark. 1135, 126 S.W.2d 928 (1939).
From what we have previously indicated, suffice it to say that the court did not err in refusing appellants’ requested instruction for a directed verdict of acquittal; their requested instruction that “where substantial evidence alone is relied upon to establish the cause of death and their requested instruction that the sheriff and the state medical examiner must be notified in the circumstances here.
Appellants assert that the court erred in admitting into evidence the cross-implicating confessions of appellants. Each confession was read to the jury with only the codefen-dant’s name deleted and replaced by a blank line. As previously indicated, neither of the appellants testified. Appellants assert that a cross-implicating confession by a nontestifying codefendant, as here, denied them their constitutional right to be confronted by that witness and, therefore, was in violation of Bruton v. United States, 391 U.S. 123 (1968). We cannot agree with appellants that Bruton or our own subsequent cases dictate a reversal in the case at bar. In Bruton, the cross-implicating confession of a codefendant who did not testify, was admitted into evidence against Bruton, who had made no admissions or confession. Neither did he testify. There it was held that this denied Bruton his constitutional right to be confronted by the witness against him. Thereafter, in Mosby and Williamson v. State, 246 Ark. 963, 440 S.W.2d 230 (1969), we reversed the trial court because it gave an instruction, unrequested by the defendant, stating that his failure to testify could not be considered as evidence of guilt. However, in view of a retrial, we deemed it necessary to observe, since cross-implicating confessions were permitted there, that:
The answer to the problem [in Bruton] seems to be to delete any offending portions of the admissions with reference to a codefendant, if such deletion is feasible and can be done without prejudice, or to grant separate trials.
The progeny of that case is Miller v. State, 250 Ark. 199, 464 S.W.2d 594 (1971); Byrd v. State, 251 Ark. 149, 471 S.W.2d 350 (1971); Grooms v. State, 251 Ark. 374, 472 S.W.2d 724 (1971); and Patrick v. State, 255 Ark. 10, 498 S.W.2d 337 (1973). In the case at bar, as indicated, the codefendant’s name in each cross-implicating confession was deleted and replaced by a blank line in an effort to comply with our decisions.
There were numerous other participants whose names were not deleted. The statement of one of the nontestifying appellants, Stewart, was that his shotgun discharged accidentally when he jumped off a porch rail and that _, who had a pistol, started shooting at the victim. A statement of the other nontestifying appellant, McGhee, was that he had a pistol as did another named companion. Also when he “was talking to the pusher, -and Lenoris Ball came up on the side of the porch” and “both had sawed off shotguns.” He denied shooting the victim and struck Ball to prevent him from using his shotgun. When he did so his, McGhee’s, pistol went “off.” Ball’s gun was never fired. Consequently, each of the declarants admitted their presence and purpose at the scene of the crime, though contradicting each other in some aspects with respect to the extent of their complicity. Furthermore, Bullock, a participant and the state’s witness, had previously testified that he saw McGhee at the door with a pistol on the victim and that he observed Stewart, who had a shotgun, jump “over a post, and the shotgun discharged” shooting the victim.
Since Bruton various U. S. Circuit Courts of Appeal and state courts have found Bruton inapplicable in factual situations somewhat similar to the case at bar on the premise that interlocking confessions, which are assertively corroborative of each other, as here, are not violative of Bruton when admitted into evidence. The first case in which the rule as to interlocking confessions was expounded is U. S. ex rel, Catanzaro v. Mancusi, 404 F.2d 296 (2d Cir. 1968), cert. den. 397 U. S. 942, 90 S.Ct. 956, 25 L.Ed.2d 123. There the court held that the admission into evidence of a confession of a codefendant, which interlocked with and was supported by Catanzaro’s own confession, did not prejudice Catanzaro’s right to a fair trial. The court said:
Where the jury has heard not only a codefendant’s confession but the defendant’s own confession no such ‘devastating’ risk attends the lack of confrontation as was thought to be involved in Bruton.
This case was decided only six months after Bruton. Cf. Harrington v. California, 395 U.S. 250 (1969); and Nelson v. O'Neil, 402 U.S. 622 (1971).
Then came United States ex rel Duff v. Zelker, 452 F.2d 1009 (2nd Cir. 1971), cert. den. 406 U.S. 932, 92 S.Ct. 1807, 3 L.Ed.2d 134, where the court again applied the rule on in» terlocking confessions. There the court said:
We reject appellant’s claim that the admission of the written statements of Ferguson and Hill violated the rule of Bruton v. United States, 391 U.S. 123, 88 S.Ct. 1620, 20 L.Ed.2d 476 (1968). The statements were similar to Duff’s own confessions, written and oral, which placed him at the scene with a fair implication of knowing participation. When the defendant’s ‘confession interlocks with and supports the confession of’ the codefendant, there is no violation of the Bruton rule.
******
As far as Ferguson’s statement is concerned, it should be noted also that Duff had the opportunity to cross-examine Ferguson at the Huntley hearing. [Denno hearing.] See California v. Green, 399 U.S. 149, 165, 90 S.Ct. 1930, 26 L.Ed.2d 489 (1970); People v. Moll, 26 N.Y.2d 1, 307 NYS 2d 876, 256 N.E.2d 185 (1970).
The rule was applied reluctantly by a different panel of the same court in United States ex rel Ortiz v. Fritz, 476 F.2d 37 (2nd Cir. 1973), cert. den. 414 U.S. 1075, 94 S.Ct. 591, 38 L.Ed. 2d 482. The court considered itself bound by the Catan-zaro rule. The court resolved the question whether the confessions there were sufficiently interlocking because discrepancies in them were such as to make one or more erroneous or false, by saying that as to motive, plot and execution they were (as here) essentially the same. The court then said that it was uncomfortable with the implications of Catanzaro, but found it to be the law of the circuit, having been followed in two subsequent cases. The court then said:
.... If it is to be overruled, it will have to be by the Supreme Court, absent the requisite en banc vote which — through prior circulation of this opinion — has not ensued.
In spite of the open invitation, certiorari was again denied. The court found Catanzaro expressive of the law in United States v. DeBerry, 487 F. 2d 448 (2d. Cir. 1973). To the same effect are United States ex rel Long v. Pate, 418 F. 2d 1028 (7th Cir. 1969); Metropolis v. Turner, 437 F. 2d 207 (10th Cir. 1971), where the Harrington harmless error rule and the Cantanzaro rule were both held applicable, and United States v. Spinks, 470 F. 2d 64 (7th Cir. 1972).
Bruton has been distinguished also in state courts on the difference between the situation here and the situation where a defendant who has remained silent at all times is inculpated by a codefendant’s confession. State v. Hall, 185 Neb. 653, 178 N.W. 2d 268 (1970); State v. Aiken, 75 Wash. 2d 421, 452 P. 2d 232 (1969); State v. Hopper, 253 La. 439, 218 So. 2d 551 (1969); and Commonwealth v. Scott, 355 Mass. 471, 245 N.E. 2d 415 (1968).
In the case at bar, each defendant has, by his own statement, implicated himself in active participation in a robbery which resulted in the killing of the victim. Each participant is equally as guilty, under these circumstances as is the other. Turnage v. State, 182 Ark. 74, 30 S.W. 2d 865 (1930). Ark. Stat. Ann. § 41-118 (Repl. 1964). Stewart said he wanted to go along on the robbery of the dope pusher, went up to the house, cocked his shotgun and climbed upon the porch rail. The fact that he claimed that his shotgun went off accidentally made him no less guilty of the crime with which he was charged, particularly when this happened because he jumped off the porch rail thinking that his unnamed confederate, who was talking to the “dude”, was waiting on Stewart to “make his move.”
McGhee’s statement was that he had a .38 pistol in his hip pocket when he went to the “pusher’s” door and that two others had sawed off shotguns. One of them, Lenoris, said “if he won’t sell it to us, we’ll just take it.” About this time, said McGhee, the pusher opened the screen door and an unnamed companion’s shotgun went off as he jumped off the wooden rail. McGhee admitted that the pistol he had went off and that when he was back in the car in which he came to the scene, three shells had been fired. Also each statement is corroborative of the testimony of their accomplice, Bullock.
We did not actually hold in Mosby and Williamson v. State, supra, that Bruton required reversal of their convictions. Our reversal was predicated upon an erroneous instruction. We did little more than the Massachusetts Supreme Judicial Court did in Commonwealth v. Scott, supra, i.e., alert the courts and prosecutors to the risks inherent in the introduction of confessions of individual defendants in the joint trial of multiple defendants. We merely called attention to Bruton and the case of Roberts v. Russell, 392 U.S. 293 (1972). In addition, we pointed out that a separate trial was mandatory in a capital case, as Mosby was, so that the “problem” of cross-implicating confessions would not arise if a separate trial were requested. See Sims v. State, 253 Ark. 1119, 491 S.W. 2d 583 (1973). Furthermore, the only evidence other than the confessions in the Mosby case was the fact that the crime had been committed. In Miller v. State, supra, we simply held that no problem of confrontation contrary to Bruton arose when the trial court struck all portions of confessions of codefen-dants relating to other defendants. In Byrd v. State, supra, we did say that we had held, in Mosby, that it was prejudicial error to admit cross-implicating confessions in a joint trial, again suggesting that an answer to the problem would be deletion of offending portions referring to a codefendant, if feasible. However, we emphasized the fact that the appellant testified and denied any complicity in the alleged crime. So the case now before us is readily distinguishable from Byrd.
In Grooms v. State, 251 Ark. 374, 472 S.W. 2d 724 (1971), there was no confession by the appellant in whose trial the confession of a codefendant implicating appellant was narrated without any apparent deletion. In Patrick v. State, supra, the cross-implicating confessions of all three codefen-dants were introduced “in toto.” There is nothing to indicate what other evidence was offered to show their complicity in the burglary and grand larceny with which they were charged.
In short, in our post-Burton cases, we have not foreclosed the treatment of cross-implicating confessions as approved in Catanzaro and kindred cases. Significantly, it has not been foreclosed by the U.S. Supreme Court in spite of an undisguised plea for it to do so by the court in which it was first ennunciated. United States, ex rel Ortiz v. Fritz, supra. This is the first time that our state has urged its applicability.
In the case at bar, appellants’ motives, plots and participation in the crime are essentially the same. Unlike Bruton, both appellants made interlocking and corroborative confessions, the voluntariness of which is not in issue. As codefendants, their names were deleted. It does not appear that a severance was requested. Also their confessions are corroborative of one of their accomplices, who was subjected to a lengthy cross-examination. It does not appear in the factual situation here that harm is being done to individual rights by holding, as we do, that Bruton is inapplicable.
Affirmed.
Byrd, J., dissents. | [
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Lyle Brown, Justice.
Appellant James Alexander was convicted of the sale of a controlled substance (LSD) and sentenced to ten years. He advances five points for reversal which will be enumerated and discussed under separate headings.
Point I. The court erred in denying .appellant’s motion for the Slate to furnish him an independent chemist to make an analysis of the contraband.
Appellant takes the position that he was without funds to hire a chemist to make an independent analysis of the LSD and that he had a constitutional right to have such assistance at the expense of the State. We are cited no precedent to justify such demand. It clearly is not mandated or authorized by statute. A corollary to appellant's request is found in our case of Hale v. State, 246 Ark. 989, 440 S.W. 2d 550 (1969). Hale contended that the trial court erred in refusing to provide him funds with which to employ a private psychiatrist. In holding Hale's contention without merit we pointed out there was no law to support the proposition. To the same effect see Grissom v. State, 254 Ark. 81, 491 S.W. 2d 595 (1973). We point out that a qualified chemist employed by the State Board of Health made the analysis. Her qualifications are not questioned and she is in no way controlled by persons charged with the duty of prosecuting criminal cases.
Point II. The delay between the alleged commission of the offense and the filing of charges was constitutionally detrimental to appellant.
The offense was alleged to have occurred on February 28, 1973, and charges were not filed until July 12, 1973. Our general statute of limitations on filing of felony charges such as the one at hand is three years from the commission of the offense. Ark. Stat. Ann. § 43-1602 (Repl. 1964). A similar contention was made in Beckwith v. State, 238 Ark. 196, 379 S.W. 2d 19 (1964). We there said it was realized that time wears out proof of innocence as well as proof of guilt; nevertheless, the public policy on limitations for filing charges is expressed in the statute. We there said that the record failed to show that the acts of the prosecutor were so arbitrary, unreasonable and unlawful as to deprive Beckwith of due process of law. The same question arose in the case of I United States v. Marion, 404 U.S. 307 (1971). In that case there was a delay of 38 months between the commission of the offense and the returning of an indictment. The Court said the due process clause of the fifth amendment would require dismissal if it were shown at the trial that the pre-indictment delay “caused substantial prejudice to appellees' rights to a fair trial and that the delay was an intentional device to obtain tactical advantage over the accused”. Then the court went on to make a point which is apropos to the case at bar:
Appellees rely solely on the real possibility of prejudice inherent in any extended delay; that memories will dim, witnesses become inaccessible, and evidence be lost. In light of the applicable statute of limitations, however, these possibilities are not in themselves enough to demonstrate that appellees cannot receive a fair trial and to therefore justify the dismissal of the indictment. Events of the trial may demonstrate actual prejudice, but at the present time appellees' due process claims are speculative and premature.
In the case at bar it was clearly evident that no harm came to the appellant's defense as a result of the delay.
Point III. The trial court erred in permitting appellant’s wife to be cross-examined about other offenses allegedly committed by appellant.
Appellant says “the State attempted to place before the jury other offenses by asking the appellant’s wife if marijuana and other narcotics were not present in their house trailer many times and if she had not purchased or bought capsules for her husband to put dope in”. Evidence was produced by the State to the effect that narcotics were in fact in the house trailer and that the wife had obtained empty capsules to be filled with LSD. It was certainly permissible to cross-examine the witness as to felonious offenses of which she may have had knowledge or in which she may have participated. The subject matter went to her credibility as a witness. In Clark v. State, 246 Ark. 1151, 442 S.W. 2d 225 (1969), appellant’s wife was questioned on cross-examination about the number of times she had testified in court. In affirming the case we pointed out that wide latitude is allowed on cross-examination to elicit facts impeaching the credibility of a witness. “The scope of this examination is largely within the discretion of the trial court.”
Point IV. The court erred in permitting the cross-examination of appellant about arrests on other crimes.
Appellant asserts as error under this point the fact that he was asked on cross-examination, “is that the first time you have been arrested?” Appellant takes the question out of context and also misquotes it. The prosecuting attorney inquired: “Now when were you arrested on these drug charges?" The dispute between the prosecutor and the witness concerned the exact date upon which appellant was arrested on the charges for which appellant was being tried. Appellant contended that he was not arrested until October l6. Upon objection being made, the prosecutor made it clear that he was trying to ascertain the exact date of the arrest of appellant on “this charge”. The trial court instructed the jury that evidence of any other arrest was not admissible. The point is without merit.
Point V. The court erred in permitting continued cross-examination of appellant concerning other crimes after appellant denied the crimes.
We have examined the testimony upon which the point is based. Appellant was asked on cross-examination if, on January 23 past, he sold two ounces of marijuana to W. D. Blount; if he received thirty dollars for the marijuana; if on the same day he sold two ounces of marijuana to Ken McKee; if he dealt in drugs with Ernie Epley or with Norman Hunter; if he did in fact “push drugs” for Pat Beaverson; if he sold mescaline out of Mobile Home No. 16; if he sold some LSD on February 28 past; if he sold drugs on March 1, 1973, to David Kem; if he bought empty capsules at the Indian Mall Pharmacy to be used for packing mescaline; if he sold cocaine from the trailer; and if he kept drugs in the mobile home in a drawer in the kitchen. All of the questions brought negative answers. The prosecutor did not argue with the witness about his answers. We are unable to say the trial court abused its discretion in permitting the questions to be propounded.
Affirmed. | [
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J. Fred Jones, Justice.
This is an appeal by Miss Linda Ellen Snow and Mrs. Dale Loyd Smith from a Washington County Probate Court judgment holding the appellee, Marjorie T. Martensen, to be the surviving joint tenant, and therefore sole owner, of a savings account in the approximate amount of $70,000 deposited with the First Federal Savings and Loan Association of Fayetteville in the names of Blanche M. Box and Marjorie M. Martensen.
The facts appear as follows: Mrs. Blanche M. Box was 83 years of age when she died testate in Washington County, Arkansas, on October 17, 1971. She left as her sole surviving heirs, one daughter, the appellee Marjorie T. Martensen, and two granddaughters, the appellants Linda Ellen Snow and Joan Snow Smith.
Mrs. Box was living in California when she executed her last will and testament on March 10, 1969, and the pertinent provisions of the will read as follows:
“FIRST: I revoke all Wills and Codicils that I have previously made.
SECOND: I declare that I am married to JOHN V. BOX and all references in this Will to ‘my husband’ are to him. I have one child now living, my daughter, MARJORIE T. MARTENSEN.. I have one deceased child, my daughter, MARY J. SNOW, who was survived by her daughters, LINDA ELLEN SNOW and JOAN ELIZABETH SNOW. Both of my children are the children of my former marriage. I have no other children, living or deceased.
THIRD: I give and bequeath all my jewelry to my daughter, MARJORIE T. MARTENSEN. If she fails to survive me this bequest shall fail.
FOURTH: I give, devise and bequeath the residue of my estate, real and personal, wherever situated, including all failed and lapsed gifts, as follows:
(a) One-half (Vz) thereof to my daughter, MARJORIE T. MARTENSEN. If she fails to survive me, I give all such property to her lawful issue who survive me on the principle of representation.
(b) One-fourth (!4) thereof to my granddaughter,
LINDA ELLEN SNOW.
(c) One-fourth (!4) thereof to my granddaughter, JOAN ELIZABETH SNOW.
* * *
SEVENTH: I nominate and appoint my husband as Executor of this Will, to serve without bond. If my husband shall for any reason fail to qualify or cease to act as Executor, I nominate and appoint CARL J. SCHUCK as Executor of this Will, to serve without bond. The term ‘Executor’ as used in this Will shall include any personal representative of my estate. I authorize my Executor to sell or lease such property of my estate as may be necessary or advisable, subject to confirmation as may be required by law and to hold, manage and operate any business belonging to my estate at the risk of my estate. I authorize and empower my Executor to invest and reinvest my estate to the extent permitted by law in such investments as are authorized by the provisions of California Civil Code Section 2261 or any subsequent statute of similar import.”
Mrs. Martensen went to California and returned to her home in Fayetteville with her mother, Mrs. Box, about October 1, 1971. Mrs. Box’s husband, John V. Box, died after the will was executed. Following the death of Mrs. Box, Mr. Schuck renounced his right to appointment as executor under the will and Mrs. Martensen was appointed administratrix with will annexed. Mrs. Martensen filed her inventory on May 10, 1973, showing no real estate, and personal property totaling $786.00 itemized as follows:
“Miscellaneous personal effects $ 50.00
One (1) old style round cut diamond ring,
2.20 carats with four small
diamond melee 696.00
One (1) 14 kt. yellow gold bracelet 25.00
One(l)14kt. yellow gold bee pin 15.00”
The appellants filed objections to the inventory filed by the appellee. They contended that the savings account here involved constituted assets of the decedant’s estate to be administered under her will. Mrs. Martensen contended first that the amount in the savings account was a gift to her and, second, that the savings account belonged to her as the surviving joint tenant with right of survivorship. The probate judge agreed with Mrs. Martensen on her second contention and on appeal to this court the appellants have designated the following points for reversal:
“The probate court erred in holding that Arkansas law does not require a designation in writing to create a joint-tenancy with right of survivorship in a savings account held in a savings and loan.
The probate court erred in failing to hold that even if Ark. Stat. 67-1838 (1) does not on its face require a designation in writing, that that statute has been amended and/or repealed either directly or by implication by Act 78 of 1965 (Ark. Stat. 67-552).
The probate court erred in failing to hold that Section 1 of Ark. Stat. 67-1838 as far as it attempts to make the doing of an act conclusive evidence of another act or of an intention is invalid.
The probate court erred in failing to hold that an account with a savings and loan is a contract and since the signature card (appellants’ exhibit A) was never signed by Blanche Box (and in fact, there was no evidence that it was ever seen by her), Blanche Box is not bound by the language on the signature card nor is she an applicant for the opening of a joint account as stated on the signature card.”
We find no merit to the appellants’ first two points.
In Willey, Adm’r v. Murphy, 247 Ark. 839, 448 S.W.2d 341, we had under consideration a savings account in a savings and loan association under Ark. Stat. Ann. § 67-1838 (Repl. 1966) and also certificates of deposits in the Peoples Bank and Trust Company of Russellville under Ark. Stat. Ann. § 67-552 (Repl. 1966). The savings and loan certificate for $8,000 was issued to Pearl Bailey or V. A. Murphy. The evidence was to the effect that both Mrs. Bailey and Mr. Murphy went to the savings and loan association office and opened the account with Mrs. Bailey’s money. A deposit slip and signature card were in evidence in that case and the signature card designated Mrs. Bailey and Murphy as joint tenants with right of survivorship. Mrs. Bailey died and the trial court held, in a suit between Murphy and the administrator of Mrs. Bailey’s estate, that the savings account belonged to Murphy and we affirmed citing § 67-1838, as follows:
“ ‘If the person opening such savings account fails to designate in writing the type of account intended, or if he designates in writing to the association that the account is to be a ‘joint tenancy’ account or a ‘joint tenancy with right of survivorship’ account, or that the account shall be payable to the survivor or survivors of the persons named in such account, then such account and all additions thereto shall be the property of such persons as joint tenants with right of survivorship.’ ”
On the same date the account was opened with the savings and loan association, Mrs. Bailey and Mr. Murphy went to the Peoples Bank and Trust Company of Russellville and opened an account there through certificates of deposit. The certificates were stamped “as joint tenants with right of survivorship and not tenants in common.” An executive officer of the bank testified that Mrs. Bailey introduced Mr. Murphy to him and told him she wanted the certificates issued in both names, and that he assumed she wanted it in a normal wording of a joint account with right of survivorship. He said he misplaced Mr. Murphy’s name and upon so advising Mrs. Bailey, she again advised him to issue the certificates in her name and the name of Mr. Murphy. The trial court found that the two bank certificates were not issued in the form required by law to vest title in Murphy as survivor. We affirmed the trial court and in doing so quoted § 67-552, as follows:
“ ‘If the person opening such account, or purchasing such certificate of deposit, designates in writing to the banking institution that the account or the certificate of deposit is to be held in ‘joint tenancy’ or in ‘joint tenancy with right of survivorship,’ or that the account or certificates of deposit shall be payable to the survivor or survivors of the persons named in such account or certificate of deposit, then such account or certificate of deposit and all additions thereto shall be the property of such persons as joint tenants with right of sur-vivorship.’ ”
As to the bank certificates in Willey, supra, we relied on Cook v. Bevill, 246 Ark. 805, 440 S.W.2d 570, where we said that there must be a substantial compliance with the “designation in writing” requirement of the Act in order to effect sur-vivorship.
In Cook v. Bevill, supra, we traced the history of § 67-552 as relating to joint accounts in banks and stated that Act 260 of 1937 (§ 67-521 before amendment) had a two-fold purpose. “It protected the bank in making payments from deposits in the names of any two persons; and it declared ‘a definite and conclusive relation of the parties to such deposit on the death of either. ’ ” Citing Bye v. Higgason, 210 Ark. 347, 195 S.W.2d 632. We then pointed out in Bevill that Act 78 of 1965, Ark. Stat. Ann. § 67-552 (Repl. 1966), “was our first comprehensive enactment governing joint bank accounts.” In Bevill we then continued:
“Two years previously a very similar act was passed affecting joint deposits in savings and loan associations. See Ark. Stat. Ann. § 67-1838 (Repl. 1966). The principal virtue of Act 78 is the requirement of designation in writing: that is, when an account is opened or a certificate of deposit is issued in the name of two or more persons, a written designation is made as to the investiture of title.”
We are unable to read into Act 78 of 1965, § 67-552, an amendment of § 67-1838. Section 67-552 is under Chapter 5 of the statutes pertaining to “Powers of Banks” and only banking institutions are mentioned therein. This section simply reads in part as follows:
“Checking accounts and savings accounts may be opened and certificates of deposit may be issued by any banking institution with the names of two [2] or more persons, either minor or adult, or a combination of minor and adult, and such checking accounts, savings accounts and certificates of deposits may be held:
(a) If the person opening such account, or purchasing such certificate of deposit, designates in writing to the banking institution that the account or the certificate of deposit is to be held in ‘joint tenancy’ or in ‘joint tenancy with right of survivorship,’ or that the account or certificates of deposit shall be payable to the survivor or survivors of the persons named in such account or certificate of deposit, then such account or certificate of deposit and all additions thereto shall be the property of such persons as joint tenants with right of survivorship.”
Ark. Stat. Ann. § 67-1838 (Repl. 1966) is under an entirely different Chapter 18 of the statutes applying to “Savings and Loan Associations” and the pertinent portion of this statute simply reads as follows:
“Savings accounts may be opened in any association or a federal association 4n the names of two [2] or more persons, either minor or adult, or a combination of minor and adult, and such savings accounts may be held:
(1) If the person opening such savings account fails to designate in writing the type of account intended, or if he designates in writing to the association that the account is to be a ‘joint tenancy’ account or a ‘joint tenancy with right of survivorship’ account, or that the account shall be payable to the survivor or survivors of the persons named in such account, then such account and all additions thereto shall be the property of such persons as joint tenants with right of survivorship.”
It is not necessary to attempt to determine the intent of the Legislature in making such broad distinction in “accounts and certificates of deposits in two or more names” when dealing with a banking institution and “savings accounts in the names of two or more persons” when deposited with a savings and loan association. Regardless of the intent of the Legislature, the language is plain. The practical effect of § 67-1838 is that if an individual opens an account in a savings and loan association in the names of two or more persons and fails to designate in writing to the association that the account is to be a “tenant in common” account (§ 67-1838 [3]), then the account and all additions thereto shall be the property of such persons as joint tenants with right of sur-vivorship. In other words, as the law now stands, if the account is opened in a banking institution, a joint account with right of survivorship shall be designated in writing; whereas, if the account is opened in a savings and loan association, the account becomes a joint account with right of survivorship unless a contrary intent is so designated.
In support of appellants’ third point they rely on Cupp, Adm'r v. Pocahontas Fed. S. & L., 242 Ark. 566, 414 S.W.2d 596, but in that case we said:
“While we have recognized that the legislature can not declare one fact conclusive evidence of another material fact in controversy, such is not the situation involved here. It is perfectly permissible for the legislature to declare the legal effect of doing certain acts. The legislature declared only what the legal effect of executing and filing with the association such a designation would be — namely, to make Thucie Nolen the owner of the account as between heirs and devisees of the holder thereof.”
The appellants’ fourth point gives us considerable difficulty in light of the record in this case. We fully appreciate the difficulty confronting the probate judge in the trial of this case because by far the majority of the 294 page record consists of objections to exhibits and testimony, and the court’s rulings thereon. When the competent evidence is gleaned from the objections overruled, the facts, as they relate to the immediate question before us, appear as follows: Mrs. Box was living in California when she executed her will on March 10, 1969. Sometime between January, 1971, and October, 1971, Mrs. Box decided to move to Fayetteville, Arkansas to live with her daughter and son-in-law, Mr. and Mrs. Martensen. It is not clear from the record exactly when Mrs. Box came to Arkansas but according to Mr. Martensen’s testimony, it was apparently around October 2, 1971. Mrs. Box had $70,000 on deposit in three separate savings and loan associations in California which were transferred to the First Federal Savings and Loan Association of Fayetteville.
Mr. Martensen testified that he and Mrs. Martensen went to California (apparently in September, 1971) and upon his return to Fayetteville, he made arrangements with the First Federal Savings and Loan Association to obtain the proper documents to effect the transfer of Mrs. Box’s funds in California to the First Federal Savings and Loan Association of Fayetteville. He said he obtained several blank combination letter-draft forms from Mr. Eason, president of First Federal Savings and Loan Association, and took the blank forms to his home. He said that on October 2, 1971, after Mrs. Martensen arrived from California with Mrs. Box, that Mrs. Box signed the forms in his presence. In this connection Mr. Martensen testified as follows:
“Q. What did you do with these documents after you obtained them in blank from the Federal Savings and Loan Association, Mr. Martensen?
A. These blank documents here?
Q. Yes, sir.
A. These were taken to my home prior to my wife’s arrival with Mrs. Box, which I left California a week, four or five days before.
Q. So, you took them to your house?
A. Yes, sir.
Q. All right. What happened after that?
A. After Mrs. Box was there she went through a process of cleaning out, cleaning house, settling down in the home, sending out her laundry and that type of thing.”
Mr. Martensen then said that on Saturday morning, after the mail came, Mrs. Box signed the instruments in his presence. He then continued as follows:
“Q. What happened after that, Mr. Martensen?
A. The documents were signed. The books were handed to me by my wife who had them on the way from California. I took them to the office.
Q. These documents were signed by whom?
A. Mrs. Box.
Q. Who was present when she signed them?
A. My wife, myself and Mrs. Box.”
Mr. Martensen said that after Mrs. Box signed the instruments and handed them back to him, he took them to his office and put them in the safe together with the California passbooks which his wife had in her possession and gave to him. He said he was planning to return to California on Monday morning, October 4, in connection with the house in California, and on that morning he took the documents signed by Mrs. Box to Mr. Eason at the savings and loan association. He said that from then on it was in the hands of Mr. Eason. The instruments so referred to were simply printed form letters bearing sight draft form designed for use by savings and loan associations in obtaining transfer of funds. The letter portion was a request for transfer signed by Mr. Eason as president of First Federal and the sight draft was to be signed by the depositor or owner of the funds. Mr. Martensen testified that Mr. Eason sent the draft to California and when the money was received by First Federal Savings and Loan Association, Mr. Eason called him. He said all the blank forms he obtained from Mr. Eason bore an “x” mark where they were to be signed by Mrs. Box and that he, Martensen, did not make the small “x” marks on the instruments where Mrs. Box was supposed to sign.
Mr. A. P. Eason, Jr., testified that he was president of the First Federal Savings and Loan Association of Fayetteville and had been since it was formed in 1953. He testified by deposition that Mr. and Mrs. Martensen were customers of his association and he recalled Mr. and Mrs. Martensen coming in and discussing with him the transfer of the accounts from California to Fayetteville. He said he did not recall whether Mrs. Box was present or not. He said that Mr. and Mrs. Martensen did request a transfer of the funds. He said he did not remember the exact date of the request and would have to rely on the date of the correspondence with the California institutions in connection therewith. He said upon Mr. Martensen’s request he furnished him the regular draft forms used for such purposes and which the association prepares for withdrawals from another association. He said it was necessary for the holder of the account to sign the draft form and that signatures purporting to be those of Mrs. Box appeared on the forms when they were returned to him. He said after sending the instruments together with the passbooks to the savings and loan associations in California, he received drafts made payable to the First Federal Savings and Loan Association of Fayetteville. He said that upon receipt of the money from the California institutions, he called the Martensens or Mrs. Box, he did not remember which, and as a result of the conversation, he deposited the funds to the joint account. Mr. Eason then testified as follows:
“ ‘Exhibit D’ and that has previously been identified as the signature card and introduced in evidence by the petitioners, ‘ — contains only the signature of Mrs. Martensen, can you explain why that was?
Answer: When the money came in, I called and told them that it was here, and Marg came by, and signed the card, and said her mother would be by in a few days, that she was sick.’ ”
Mr. Eason testified that it was quite common for one person to come in and open a joint account and sign a signature card and the other party to the account not do so. In thté connection he said:
“ . . this again is quite common, we will have many times the parents and children open accounts; it works both ways; the children will say, ‘Mamma will come by, and sign the card next week, ’ and by the same token, the parents will come in and open an account, and say, ‘My son is in South America, or Florida, and he’s going to do this, and in two or three months he will be by and sign the account.’ ”
Mrs. Martensen’s testimony was primarily directed to the identification of her mother’s signature on the instruments involved, but the genuineness of Mrs. Box’s signature on the draft forms is not really questioned in this case. The so-called signature card which was placed in evidence as plaintiff’s exhibit 8 was more than a mere “signature card.” It was the only documentary evidence of instructions to First Federal Savings and Loan Association of Fayetteville in opening the savings account. This form, as filled out by First Federal and signed by Mrs. Martensen, appears as follows:
“ Account No. 2-520
A.
and B. Box Blanche M. and
and C. Martensen Marjorie M.
Type All Names: (Last Name) (First Name) (Middle Name)
as joint tenants with right of survivorship and not as tenants in common, and not as tenants by the entirety, the undersigned hereby apply for a savings account in
FIRST FEDERAL SAVINGS AND LOAN ASSOCIATION OF FAYETTEVILLE
and for the issuance of evidence thereof in their joint names described as aforesaid. You are directed to act pursuant to any one or more of the joint tenants’ signatures, shown below, in any manner in connection with this account and, without limiting the generality of the foregoing, to pay, without any liability for such payment, to any one or the survivor or survivors at any time. This account may be pledged in whole or in part as security for any loan made by you to one or more of the undersigned. Any such pledge shall not operate to sever or terminate either in whole or in part the joint tenancy estate and relationship reflected in or established by this contract. It is agreed by the signatory parties with each other and by the parties with you that any funds placed in or added to the account by any one of the parties are and shall be conclusively intended to be a gift and delivery at that time of such funds to the other signatory party or parties to the extent of his or their pro rata interest in the account. You are authorized to accept checks and other instruments for credit to this account, whether payable to one or more of the parties, and to supply any needed endorsement. You are relieved of any liability in connection with collection of all items handled by you without negligence, and shall not be liable for acts of your agents, sub-agents or others or for any casualty. Withdrawals may not be made on account of such items until collected, and any amount not collected may be charged back to this account, including expense incurred, and any other outside expense incurred relative to this account may be charged to it. The official proxy committee of the institution is authorized in our absence to cast our vote or votes at any meeting of the members from year to year until this proxy is canceled in writing.
A
Signature (Type) Street City & State Phone
B /s/ Marjorie M. Martensen
Signature (Type) Street City & State Phone
C
Signature (Type) Street City & State Phone
Note: The correct way to establish a common law joint tenancy or its equivalent in any state is to use ‘and’ in joining tenants’ names on all evidence of the account. All tenants should sign this card. Rule out unused signature line.”
The probate judge did his usual thorough job of sifting the evidence and applying the law in this case but on appeal to this court probate cases are tried de novo as are chancery cases and we do not reach the same results that the probate judge did. In the first place there is no question but that the funds withdrawn from the California accounts were the personal funds of Mrs. Box, and there is no question that Mr. Eason knew the funds belonged to Mrs. Box when they were transferred to the First Federal Savings and Loan Association of Fayetteville. These funds were in the substantial amount of $70,000 and there is no evidence whatever that Mrs. Box ever directed Mr. Eason to deposit these funds in a joint account with Mrs. Martensen except, of course, the oral instructions he received from Mr. and Mrs. Martensen, and the written instructions he received from Mrs. Martensen on the so-called signature card. The withdrawal of the funds from the California institutions, and the method of doing so, are not really important to the case before us. The important point is not the withdrawal of the funds but the redepositing of the funds in the First Federal Savings and Loan Association of Fayetteville.
The trial court pointed out that the signature card itself bore the typewritten name of Blanche Box and Marjorie Martensen. The court then reasoned that the statute does not require affirmative handwritten designation but on the contrary used the term for designation “in writing” and provides only that if “the account stands in the name of two or more persons without any contrary indication, this is enough to make a joint survivorship operable.” The court then cites and discusses Cupp, Adm'r v. Pocahontas Fed. S. & L., 242 Ark. 566, 414 S.W.2d 596, and Harris, Adm'r v. Searcy Fed. S. & L. Assn., 241 Ark. 520, 408 S.W.2d 602, and also Willey, Adm’r v. Murphy, 247 Ark. 839, 448 S.W.2d 341. In each of the three cases cited by the trial court, the owner of the money actually open ed the account, but that is not the situation in the case at bar.
There is no question that the account as it stood on the books of the First Federal Savings and Loan Association when Mrs. Box died, was a joint account with right of sur-vivorship simply by operation of law under the statute because it was in two names. The trial court pointed out that there is no evidence in the record to show that Mrs. Box did not know that the joint account was opened in her name and Mrs. Martensen’s name; and, no evidence “that she wasn’t at liberty to do whatever she wanted to about it, if she didn’t like the savings certificates issued in that fashion.” We agree with the trial judge on this point but we think it more important that there was no evidence in the record to show that Mrs. Box did know about it, or that she was aware of it. There is really no evidence that Mrs. Box knew anything at all between October 2, when the Martensens say she signed the drafts for the transferral of her funds to First Federal Savings and Loan Association of Fayetteville, and October 17 when she died. The so-called “signature card” in which Mrs. Martensen directed First Federal Savings and Loan to open the joint account was not dated but the certificates issued in compliance with the request, were dated October 12, only five days before Mrs. Box’s death. Although Mrs. Box signed the drafts for the transfer of the funds at the Martensen home on October 2, she did not sign the undated signature card at all. It can reasonably be assumed that Mrs. Box and Mrs. Martensen’s names were typed on the signature card at the time it was signed by Mrs. Martensen. Certainly there is no evidence that Mrs. Box typed her and Mrs. Martensen’s names on the signature card.
Mrs. Martensen did not say whether Mrs. Box was too ill to sign the signature card at home as she had done in connection with the transfer drafts, but she did indicate to Mr. Eason that Mrs. Box was too ill to be with her and sign the card when the account was opened. According to Eason, she said Mrs. Box would by by a few days later and sign the signature card, but Mrs. Box died a few days later and there is no evidence that she ever appeared at First Federal Savings and Loan Association’s office, or ever saw or talked to Mr. Eason.
We simply are unable to interpret § 67-1838, supra, as closing and locking the door behind a joint account with right of survivorship when once the money is deposited in two names and a receipt or passbook is issued thereon, regardless of whose money is involved and who makes the deposit. Of course, there was no fraud alleged and none proven in this case, but to uphold the judgment of the probate court under the strict construction of the statute here involved would create a situation wide open to fraud in exactly such factual situation as we have in this case. An old and senile person could simply say to another, “go deposit my funds in a savings and loan association,” or “go transfer my funds from ‘x’ savings and loan association to ‘y’ savings and loan association,” and, if the person so directed should deposit or transfer such funds in two names, there would simply be no question as to who owned the funds if the original owner should die; or as for that matter, if he should become totally incompetent before learning that his instructions had not been carried out. We are unable to believe that the Legislature intended such result.
Mrs. Box died less than two years after she executed the will under probate in this case. Mrs. Box made no change in her will by codicil or otherwise and there is no evidence that she ever considered doing so. According to the inventory filed by Mrs. Martensen, Mrs. Box owned no property whatever except miscellaneous personal property of the value of $50.00 to be divided equally between the appellants and the appellee, and the jewelry she bequeathed to Mrs. Martensen.
We are of the opinion and so hold, that “the person opening such savings account,” as referred to in § 67-1838 (1), means the person who owns the money with which the account is being opened in the names of more than one person. The judgment is reversed and this cause is remanded to the trial court for further proceedings not inconsistent with this opinion.
Reversed and remanded.
Fogleman, J., dissents; Byrd, J., concurs.
Marjorie T. and Marjorie M. are one and the same person.
State v. Snow, 230 Ark. 746, 324 S.W.2d 532; Mabry v. Corley, 236 Ark. 306, 365 S.W.2d 711. | [
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Carleton Harris, Chief Justice.
This personal injury action arose from an altercation in the polling place at Turrell, Arkansas, at the close of election day. Appellant, the then Sheriff of Crittenden County, injured appellee while the latter was being arrested, and appellee obtained a judgment for $30,000. From the judgment so entered, appellant brings this appeal, arguing only that the amount of the judgment is excessive.
Appellee, K. E. Gahr, was an election judge at the Turrell polls in a runoff between appellant and R. L. Simmons on June 11, 1974. Two of appellant’s deputies, R. C. Smithey, and Charles Walker, according to the evidence, were in and about the area all during the day. Following closing of the polls, Mrs. Faye Drake, appellant’s designated poll watcher, stated that the box was being challenged by appellant, and Deputies Smithey and Walker then came in as Mrs. Drake handed the written challenge to poll officials. Smithey and Walker were requested to leave the premises since they did not have poll watcher’s permits. According to witnesses for appellee, Smithey refused to leave, and Alvin Fraley, officer of the day at the polls, and Ricky Stalls, township constable, then placed their hands under Smithey’s arms, lifted him up and carried him out the door. Appellee testified that Walker grabbed him and he struck Walker in the mouth. After the deputies were removed from the polling place, the doors were locked and the election judges and clerks proceeded with their duty of counting the ballots, but within a short time, the back door was apparently forcibly opened by the sheriff and several deputies who entered the room. It is not clear as to exact subsequent events, other than the fact that Gahr and Stalls were placed under arrest for assaulting the deputies. The sheriff testified that he told Smithey to arrest those who had assaulted him, while all bystanders who were not deputies, stated that the sheriff made the arrests. At any rate, according to appellee, one of the deputies placed handcuffs on his right hand, the sheriff choked him, and Deputy Akers hit him in the stomach with a long nightstick.
Jerry Ray Akins testified that the sheriff was choking Gahr, and that he (Akins) was telling the sheriff while this was going on that Gahr had had a serious operation, “He was dragging him back towards the door, which he burst in, and he had him bent back over backwards ***;” that the sheriff finally let go of appellee, who then fell to the floor. The witness said that Akers poked Gahr in the stomach with a nightstick. Akins stated that after Gahr “started coming to, Sheriff Browder walked back over to where he was and said, ‘We are going to get you,’ or something you know.”
Carl Miller testified that:
“A deputy by the name of Butts walked over and caught ahold of Gahr’s arm and twisted it behind him and put the handcuffs on him, and when he done that, the Sheriff put his arm around his neck, choking him, and, of course, he was standing up there and they about choked him unconscious, and then Mr. Akers started to punching him in the stomach with a nightclub out there.”
He said that by that time, Gahr was unconscious, and that he told the sheriff, “You done killed him.”
The testimony of John B. Cage was in the same vein and he added, “The ladies there were asking him not to do it, said he had had an operation, choking him to death and all of that *** >>
Thereafter, Gahr instituted suit against Browder and Akers, obtaining the judgment for $30,000 against the sheriff, and a judgment of $150.00 against Akers.
As earlier stated, appellant does not question the substantiality of the evidence to support a judgment, but it is insisted that the verdict was excessive, and appellant’s principal argument is based upon the testimony of Dr. John E. Robinson, Jr., a general surgeon of Memphis. Dr. Robinson had first examined Gahr on November 23, 1973, for evaluation of an intractable duodenal ulcer and associated pancreatic tumors, and Gahr underwent surgery for this condi tion and his stomach was completely removed. One month after this operation, Gahr developed an intestinal obstruction which was removed in February, 1974. In March, 1974, appellee underwent surgery for a hyper-parathyroid condition.
Robinson examined Gahr on the night of the assault, finding tenderness around the incision, but no other external signs of trauma. He did not think that the trauma aggravated any existing condition, although he did feel that Gahr would have had more discomfort from physical abuse received in the abdomen than someone who had never had surgery in that area. The witness mentioned that in September, 1974, Gahr underwent another abdominal operation for continued vomiting of bile, but the doctor said this was a pre-existing condition. However, he added that the vomiting “had been resolved by a change in his diet up until the time of this alleged beating.” Dr. Robinson also said that looking at the emotional aspects of the trauma, an ulcer patient’s condition would be aggravated; “Ulcer patients are very emotional and high strung, as a rule.” Appellant points out that the total medical expense, “some of which may not have been attributable to the injuries he received at Turrell was $337.85.”
It is also contended that since the injuries based upon the actions of Deputy Akers were compensated by the jury in the amount of $150.00, the balance of the award was to compensate for the “armlock” or choking action taken by the sheriff. We do not find this contention tenable. Unquestionably, it was the view of the jury that the sheriff had control of Akers and, by a word, could have prevented the assault by the deputy; indeed, the evidence reflects that the sheriff had charge of the entire operation.
As to damages suffered by appellee, it is argued that no effort was made to show that any time was lost from work, or that Gahr’s activities had been limited in any way by his injuries and that accordingly, “the sum of $29,662.15 was awarded by this jury for Mr. Gahr’s pain and suffering and nothing more.”
We cannot agree with the above statement. It might first be mentioned, however, that Gahr detailed quite a bit of physical suffering himself, complaining of pain in his neck, tenderness around his abdominal scars, abdominal pain, and soreness of his body. Within a week after the assault, according to Gahr, there was a recurrence of frequent vomiting after meals, a condition which had been alleviated prior to the assault, and he testified of pain in his lower neck and jaw. Appellee subsequently underwent an additional operation to cure the recurrent vomiting. Let it be remembered that the evidence also reflected that Gahr had undergone surgery for a thyroid condition less than three months before the assault, the thyroid gland being located at the base of the neck.
Of course, had appellee sought punitive damages, the entire amount awarded by the verdict would likely be quickly upheld, for the conduct of the sheriff, under the testimony of the witnesses, cannot be justified in any manner. Browder, a public officer, entrusted by the public to safeguard the rights of its citizens, was six feet tall and weighed two hundred and fifteen pounds, and though the sheriff testified that he only used so much force as was necessary in making an arrest, it would not appear a matter of necessity that he choke Gahr, who was five feet five inches tall and weighed one hundred and twenty-five pounds, into unconsciousness.
As earlier stated, we cannot agree that the award was made simply on the basis of Gahr’s pain and suffering. The jury was instructed as to mental anguish, and this is an important element of damage, in 6 AM. JUR. 2d Assault and Battery § 183, it is pointed out that the prevailing view is that in an action for an assault and battery, damages for mental suffering may be recovered even though the plaintiff received no physical injury. Further:
“Mental suffering reasonably certain to be endured in the future may be taken into account in estimating the amount of damages to be awarded. Other elements that may be taken into consideration in determining such damages include the affront to the plaintiff’s per sonality, and the indignity, disgrace, humiliation, and mortification to which he was subjected by the defendant’s conduct.
“In an action for assault or battery, damages for mental suffering are usually allowed as compensatory damages.”
This reasoning was followed in the Tennessee case of Garner v. State ex rel. Askins, 137 Tenn. App. 510, 266 S.W. 2d 358 (1953), where the sheriff and his deputy held the victim while a constable beat him with a blackjack in the course of arresting him for reckless driving. There, the trial court granted a remittitur from $4,050 to $750.00, stating that the plaintiff wasn’t hurt, “just his feelings.” The appellate court reversed, restoring the judgment to the full amount originally awarded by the jury and stated:
“Plaintiff was entitled to recover compensation for all his injuries - those already suffered and those he is reasonably certain to suffer - including an allowance for his physical pain and mental anguish, for the affront to his personality, the indignity, disgrace, humiliation and mortification to which he was subjected by the conduct of this peace officer.
“It is true that there are no set rules for determining the amount of damages which a plaintiff is entitled to recover for the wrongful conduct of an officer in a case like this. There is a wide range of variation in amounts in cases more or less similar, but there are numerous cases more or less similar to this in which there were larger judgments than the amount originally fixed by the jury in this case.”
There are no Arkansas cases which deal specifically with the element of mental anguish in an assault and battery case and we thus have no precedent for a guide in the present litigation. As stated by the court in Garner, there are really no set rules for determining the proper amount of damages in a case of this nature, but it is evident from the testimony herein set forth that a jury could find that Gahr suffered not only in tense physical pain, but deep mental anguish through worry, humilitation, and mortification occasioned by the attack upon him. Certainly, a jury could have found from the evidence of Dr. Robinson and Gahr that the frequent vomiting by appellee had been resolved prior to the assault; that the additional operation to correct this condition subsequent to the assault, had been occasioned by the sheriff’s attack upon Gahr. Of course, worry over what effect the injuries inflicted could have on his general physical condition, including the possibility of further surgery, could create considerable mental anguish. A jury could find that the embarrassment and humiliation of being choked and beaten in front of one’s friends and acquaintances, as well as being handcuffed like a common felon, by the very nature of these acts, would occasion extreme anguish. How does one measure financial indemnity for this type of damage? What figure properly compensates for such a humiliating and ignominious experience? There can be no set standard.
In Turchi v. Shepherd, 230 Ark. 899, 327 S.W. 2d 553 (1959), this court said:
“A comparison of awards made in other cases is a most unsatisfactory method of determining a proper award in a particular case, not only because the degree of injury is rarely the same, but also because the dollar no longer has its prior value. Even as far back as 1928, in the case of Missouri-Pacific Railroad Company v. Elvins, 176 Ark. 737, 4 S.W. 2d 528, this Court said:
‘In this connection it may be also, stated that the jury may consider to some extent that money today has much less purchasing power than it had twenty or even fifteen years ago. This is a matter of common knowledge to all, of which courts and juries may take judicial notice. ’
“Certainly, it is a matter of common knowledge that today’s dollar has greatly diminished in value during the past several years.”
If, in 1959, it was a matter of common knowledge that the dollar had greatly diminished in value during the “last several years,” then it is certainly common knowledge that that statement is undoubtedly even more true today.
We have concluded that the award, considering all of the elements mentioned, pain and suffering, anxiety over possible physical complications that might arise, embarrassment, humiliation, etc., support a generous award — but punitive damages not being involved — not so generous as awarded by the jury.
Accordingly, the judgment is reduced to the sum of $20,-000. If, therefore, within seventeen calendar days, the appellee will enter remittitur for damages in excess of $20,000 the judgment will be affirmed. Otherwise, the judgment will be reversed and the cause remanded.
Fogleman, J., not participating.
Smithey testified that he was not asked to leave; that somebody simply said, “Throw them out.” He said when he was taken to the outside that one, “Stomped me and kicked me.” He said he was injured, though persons standing outside said that he was not attacked.
Walker said that Stalls hit him in the mouth.
The sheriff stated that Gahr took a “swing” at Deputy Butts, “started swinging with his right hand and kicking***.” He said when this happened, “I got him with an armlock and held him until Butts got the cuffs on him.”
Deputy Akers was five feet eleven inches tall and weighed two hundred forty pounds.
See Enein v. Milligan, 188 Ark. 658, 67 S.W. 2d 592, where we held that when the tort is intentional, damages for mental anguish are recoverable without physical harm. | [
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John A. Fogleman, Justice.
Appellant James Edward Williams was charged with the crimes of burglary and grand larceny. He pleaded not guilty and was found by a jury to be guilty of both charges. After deliberation on appellant’s habitual offender status the jury fixed his sentence at 21 years and 6 months on each charge, to run consecutively for a total of 43 years.
Appellant argues for reversal that there was insufficient evidence to sustain a conviction for burglary and grand larceny. He asserts there was no proof adduced by the state placing him in the store which was burglarized, nor any evidence of his indirect participation in the burglary. His conviction, he argues, was based solely on circumstantial evidence, sufficient to raise no more than a suspicion of guilt. On appeal, in criminal cases, as in others, the evidence must be viewed in the light most favorable to the appellee, and the judgment affirmed if there is any substantial evidence to support the jury’s verdict. Parker v. State, 252 Ark. 1242, 482 S.W. 2d 822.
Mr. Bob Snider, manager of the OTASCO store in Jonesboro, testified as to the condition of his store as it was found on Tuesday following the Labor Day weekend, 1973. According to him, someone had gained access to the store by kicking out a window. The office had been ransacked. The locked security case holding his inventory of handguns had been broken into and fifteen pistols, which he, using business records, identified by make, caliber and value, were taken. He identified two missing automobile tape players by serial number and price. The bottom of the store safe had been broken out, the cash register hammered on, and $179 in change kept in rolls was missing.
Albert Brumley, manager of a used car lot in Jonesboro, testified that early on the morning after Labor Day he purchased from appellant, for $20, two auto tape players packaged in sealed boxes stamped ‘OTASCO’, and got $63 in rolled change from him as well. John Hitchcock, the police officer Brumley notified, and to whom he delivered the tape players when he determined they were stolen, identified two tape players in court as the ones he received from Brumley. Their serial numbers matched the numbers the OTASCO manager testified were on the tape players missing from his store after the burglary.
Matthew Prunty testified that on September 3, at 7:30 a.m., he drove appellant, at the latter’s request, to Pocahontas “to the man what buys old guns.” Appellant had with him a metal box and a paper box. On the way, he testified, appellant said only one thing, “Man, I been up all night.” The witness testified that when he inquired as to the reason, appellant just dropped his head and “didn’t say nothing else.” He testified that Mike Skeet, the man they were going to see, bought guns from appellant for $125, that Mike took the metal box, and when the witness and appellant returned to Jonesboro, appellant gave the witness a pistol and a Timex watch, which were not old items.
Michael George Skeet testified that some date around Labor Day, 1973, (he didn’t remember what date exactly) he purchased fourteen handguns from appellant, for $120. He said that appellant was accompanied by Matthew Prunty, but appellant alone was dealing in the guns. Skeet identified a number of guns in the courtroom as those he had purchased from appellant. The make, caliber, and serial number of those guns matched those of the guns taken from OTASCO.
The fact that evidence is circumstantial does not render it insubstantial — the law makes no distinction between direct evidence of a fact and evidence of circumstances from which a fact may be inferred. Lancaster v. State, 204 Ark. 176, 161 S.W. 2d 201; Parker v. State, 252 Ark. 1242, 482 S.W. 2d 822; Simmons v. State, 255 Ark. 82, 498 S.W. 2d 870. The argument made by appellant here has been rejected by this court many times. Possession of property recently stolen from burglarized premises, not satisfactorily explained to a jury, is sufficient to support a verdict of guilt of both the burglary and the larceny, even though there is no other evidence to show that the possessor had committed the crimes with felonious intent, either in person or by being present aiding, abetting and assisting another. Taylor v. State, 254 Ark. 620, 495 S.W. 2d 532; Richie v. State, 250 Ark. 700, 466 S.W. 2d 462; Duty v. State, 212 Ark. 890, 208 S.W. 2d 162; Johnson v. State, 190 Ark. 979, 82 S.W. 2d 521.
Appellant next assigns as error the refusal of the trial court to allow Paul Guilton, a defense witness, to testify because of his violation of the rule of sequestration of witnesses. Appellant had invoked the rule when the trial commenced. Appellant had testified in his own behalf that he had purchased the two tape players for $17 or $18 from a man from Memphis, who said he had gotten the tapes from his brother’s place in Little Rock, assuring appellant they were not stolen, and saying he wanted enough money to get home to Memphis, having lost his wallet. This sale was supposed to have taken place on Labor Day morning, 1973, on East Washington Street in Jonesboro in the presence of Matthew Prunty. After appellant testified, Paul Guilton was called to the stand. The State objected on the ground that Guilton had been present in the courtroom. The trial court ascertained from Guilton that he had indeed been present from the beginning of trial that morning, and had heard all of appellant’s testimony. It appears that Guilton, having been brought from jail in order to testify, found his way into the courtroom rather than the witness room, through no fault of, or complicity with, appellant. Over the vigorous exceptions of appellant’s counsel, the trial court excluded Guilton from testifying, without ever inquiring about or considering the nature of the testimony.
The rule consistently applied by this court is that a violation by a witness of the rule of sequestration of witnesses, through no fault of, or complicity with, the party calling him, should go to the credibility, rather than the competency of the witness. Harris v. State, 171 Ark. 658, 285 S.W. 367; Hellems v. State, 22 Ark. 207; Golden v. State, 19 Ark. 590; Pleasant v. State, 15 Ark. 624. The power to exclude the testimony of a witness who has violated the rule should be rarely exercised. We have been unable to find any case in which this court has sustained the action of a trial court excluding the testimony of such a witness. While the witness is subject to punishment for contempt and the adverse party is free, in argument to the jury, to raise an issue as tq his credibility by reason of his conduct, the party, who is innocent of the rule’s violation, should not ordinarily be deprived of his testimony. Harris v. State, supra; Aden v. State, 237 Ark. 789, 376 S.W. 2d 277; Mohley v. State, 251 Ark. 448, 473 S.W. 2d 176.
Although the trial court has some discretion in the matter, its discretion is very narrow and more readily abused by exclusion of the testimony than by admitting it. Harris v. State, supra. It has even been held that failure to make a formal proffer of the testimony of a witness excluded upon no basis other than his violation of a sequestration order, without the knowledge, procurement or consent of defendant or defense counsel cannot be used to deprive the accused of his constitutional right to compulsory attendance of witnesses in his behalf. See Braswell v. Wainwright, 463 F. 2d 1148 (5 Cir., 1972). See Art. 2 § 10, Constitution of Arkansas.
The State argues that appellant’s proffer of what he expected to prove by Guilton, which was made while the jury was deliberating, came too late for the trial judge to act on it or for the jury to consider it. However, as long as a century ago this court held that where a witness is rejected on the ground of incompetency it must be presumed the trial court would have excluded the evidence, however material it may have been. Rickerstricker v. State, 31 Ark. 207; Miles v. St. Louis, I.M.&S. Ry. Co., 90 Ark. 485, 119 S.W. 837; Triangle Lumber Co. v. Acree, 112 Ark. 534, 166 S.W. 958; Shephard v. Mendenhall, 127 Ark. 44, 191 S.W. 237; Powell Bros. Truck Lines, Inc. v. Barnett, 194 Ark. 769, 109 S.W. 2d 673. The State’s objection, as well as the trial court’s ruling, in this instance, went purely and simply to competency of the witness to testify. Hellems v. State, supra; Harris v. State, supra. See also Davenport v. Ogg. 15 Kan. 363 (1873). In such a situation a proffer has played no part in the court’s exercise of discretion and serves no purpose other than permitting the appellate court to determine whether there has been an abuse of that discretion.
In Davenport, the court articulated the rule widely followed thus:
. . . The rule seems to be this: When the court below excludes evidence because the evidence, and not the witness, is supposed to be incompetent, the record must contain the evidence sought to be introduced, so that the appellate court may see whether it is competent or not; but where the court below excludes a witness because the witness, and not his evidence, is supposed for any reason to be incompetent, then all that is necessary to be put in the record is enough to show whether the witness is competent or not upon the ground upon which he is excluded; and it is not necessary in such a case to put into the record what the witness would testify to. Where the competency of the witness is objected to for any particular reason, it will be presumed, unless the contrary appears, that no other reason for his exclusion exists. And hence, in such a case, all that is necessary, as a general rule, for the record to contain is enough to show that the particular reason given for the exclusion is not sufficient. In the present case the witness was excluded solely because she herself, without any encouragement from any one else, violated an order of the court. The record contains sufficient evidence to show that such reason is not sufficient, and hence the judgment of the court below must be reversed, and the cause remanded for a new trial.
In many other jurisdictions it has been held that no proffer is necessary when the trial court holds a witness incompetent or refuses to hear him at all. See, e.g., Strader v. State, 208 Tenn. 192, 344 S.W. 2d 546 (1961); Seeba v. Bowden. 86 S. 2d 432 (Fla. 1956); Totten v. Miller's Estate, 139 Ohio St. 29, 37 N.E. 2d 961 (1941); In re Lynagh's Estate, 177 S. 2d 256 (Fla. 1965).
The proffer here had no bearing on the trial court’s ruling but is important only to enable this court to determine whether the trial court’s discretion has been exercised to the prejudice of the party calling the witnesses. See Powell v. State, 133 Ark. 477, 203 S.W. 25. The situation is quite different from the court’s sustaining an objection to a question propounded to a witness or where evidence, not a witness is excluded. The rule is well stated in Latourette v. State, 91 Ark. 65, 120 S.W. 411.
. . . The rule has been established by this court that, where error is assigned in the refusal of the court to hear testimony of a witness, the record must disclose the substance or purport of the offered testimony, so that this court may determine whether or not its rejection was prejudicial. Meisenheimer v. State, 73 Ark. 407, 84 S.W. 494. In other words, it devolves upon the appellant to show by the record here before he can complain of the ruling of the court as being prejudicial, that the offered testimony was relevant to the issue and should have been admitted.
See also, Gooch v. State, 150 Ark. 268, 234 S.W. 33; Simmons v. State, 124 Ark. 566, 187 S.W. 646. It was concisely stated thus in Rickerstricker v. State, 31 Ark. 207:
To show in what manner he was prejudiced by the ruling of the court in the rejection of the witness, it was not necessary for the defendant to set out what he expected to prove by her.
A party introducing a witness, unless required by the court, is not bound to state in advance what facts he expects to prove by him; and when, without such requirement, the court excludes a witness in limine, its decision must be understood to have been made upon an objection to the witness himself, and not to the testimony he is expected to give. It is only where evidence is ruled out on account of the matter that it is necessary to set out in the statement of the case, what the party expected or offered to prove; and where a witness is rejected on the ground of incompetency, it must be presumed that the witness would have been rejected, no matter how material the evidence might have been.
In spite of the language of Riekerslrieker. we feel that the sounder position is that a proffer must be made in order to enable this court to determine whether the exclusion of the witness was prejudicial to the defendant. Our own cases on the subject can best be harmonized by this approach. But since this is the only purpose to be served by the proffer, the time when it is made is immaterial, so long as it appears in the fecord made in the trial court.
’According to the proffer, Guilton would have testified that he saw appellant purchase two stereo tape players from an unknown individual on September 3, 1973, in front of the funeral home on East Washington, that Matthew Prunty was present and observed the transaction, and that appellant paid $17 or $18 for the tapes. In view of appellant’s testimony in this regard, and the fact that Matthew Prunty, a witness for the State, on cross-examination denied having witnessed any sale of tape players to appellant, we cannot say it is manifest appellant was not prejudiced when he was deprived of Guilton’s testimony. Graves v. State, 256 Ark. 117, 505 S.W. 2d 748. As a matter of fact the proffer shows that the testimony was relevant and material rebuttal testimony and that the trial judge abused his discretion by refusing to allow the witness to testify.
Appellant also assigns as error the trial court’s ruling allowing the State, over appellant’s objection, to question appellant with regard to a statement he allegedly made to the sheriff of Craighead County during his incarceration in the Craighead County jail. During appellant’s testimony he denied having gone to Pocahontas with Matthew Prunty and having ever seen Michael Skeet prior to trial. On cross-examination the prosecutor asked appellant if he made any remark or statement to the sheriff. Appellant denied having done so. The prosecutor then called the sheriff, and he testified that appellant said he went to Pocahontas with Matthew Prunty and that he had with him the guns in question. Appellant’s counsel objected throughout, asking for a hearing outside the jury’s presence to determine the voluntariness of any statement made by appellant. The prosecutor responded that the purpose of the testimony was for impeachment only, citing Harris v. New York, 401 U.S. 222, 91 S. Ct. 643, 28 L. Ed. 2d 1 (1971), where the United States Supreme Court held that statements of an accused inadmissible in the prosecution’s case-in-chief because of failure to warn the accused of his right to appointed counsel could nevertheless be used to impeach the accused’s credibility.
In this court appellant argues that a Denno hearing should have been required to determine the voluntariness of the statement allegedly made by appellant before the State was allowed to use it for impeachment purposes. He argues that this court, iff Rooks v. State, 250 Ark. 561, 466 S.W. 2d 478, erroneously extended the ruling in Harris v. New York, supra, to an issue not presented in Harris. In Rooks, supra, the appellant argued that Jackson v. Denno, 378 U.S. 368 (1964), 84 S. Ct. 1774, 12 L. Ed. 2d 908, and Ark. Stat. Ann. § 43-2105 (Supp. 1973) required a Denno hearing to determine the voluntariness of her in-custody statement before the State could use it to impeach her. We stated that, although in Harris there was no contention that the contradictory statement was involuntary, that court had noted that the voluntariness of a confession is irrelevant when the defendant becomes a witness. This was in a footnote to the opinion in Harris where the Court hypothesized a situation in which an accused, having confessed fully to a homicide and having led the police to the body of the victim under circumstances making his confession inadmissible, takes the stand and denies every fact disclosed to or discovered by the police as a “fruit” of his confession. Answering Harris' argument that the accused should be allowed to do so free from confrontation with his prior statements and acts, the court stated that the voluntariness of the confession would, on this thesis, be totally irrelevant, and rejected “such an extravagant extension of the Constitution.”
Appellant characterizes the court’s hypothesis and conclusion derived therefrom as dicta, arguing that the rule in Harris is limited to cases where no claim is made that the statements were coerced or involuntary. To apply Harris to a situation in which the voluntariness or coercion of a statement is asserted, argues appellant, was an erroneous over-extension. Appellant points out that prior to trial he filed a motion for hearing on voluntariness of any admission or confession whether written or oral made by defendant, together with a supporting brief, and was assured by the trial court that an out-of-court hearing would be afforded him “if and when the same is offered.” In addition, appellant points to the fact he had subpoenaed two witnesses, whose testimony would have related to the hearing on the voluntariness of any statement of appellant, that this was made known to the trial court when the prosecutor, in chambers prior to the start of tri^l, asked the purpose for the calling of the witnesses, and that the trial court responded, “Well, that will be heard outside the presence of the jury . . . ”.
The rule of Harris was fully applied and fully treated recently by the Supreme Court of the United States in Oregon v. Hass, 420 U.S. 714, 95 S. Ct. 1215, 43 L. Ed. 2d 570 (1975). There the accused was given and accepted full Miranda warnings and then, later, in a patrol car, stated he would like to telephone a lawyer but was told he would have to wait until he and the officer reached the station. The issue was whether the information given could be used to impeach him. The court ruled it could, applying Harris v. New York. Once again the court allowed the use of the statements to impeach, provided “the trustworthiness of the evidence satisfies legal standards. ” The court, having noted the absence of any claim that the statements were involuntary or coerced, said: “If, in a given case, the officer’s conduct amounts to abuse, that case, like those involving coercion or duress, may be taken cáre of when it arises measured by the traditional standards for evaluating voluntariness and trustworthiness.” Yet, we are unable to read into either Harris or Hass the requirement that before these in-custody statements can be used to impeach an accused’s testimony, a Denno hearing must be held to determine their voluntariness, especially in view of the court’s hypothetical in Harris, and its conclusion that “the voluntariness of the confession would be totally irrelevant.” And though appellant may allude to coercion, no evidence of any coercion or abuse on part of the police was introduced or offered. Neither does he ever actually argue directly that any statement of his was coerced or involuntary. All he does is point to his request for a Denno hearing, should any attempt be made to introduce any statement of his in evidence. Appellant certainly could have, but did not, put to the jury the question of voluntariness of the statement as reflecting on the weight and credibility which should be accorded it, by offering evidence on the subject. Kagebein v. State, 254 Ark. 904, 496 S.W. 2d 435; Walker v. State, 253 Ark. 676, 488 S.W. 2d 40. We find no error on this point, and decline the invitation to overrule Rooks.
Appellant argues that the trial court erred in permitting the prosecuting attorney to ask him, on cross-examination, about charges against witnesses he had subpoenaed solely to appear in any Denno hearing which might take place. As pointed out earlier, there was inquiry, in chambers, prior to trial, into what purpose appellant had for having subpoenaed two prospective witnesses, the Smith brothers, and it was stated the purpose would be made known at the Denno hearing, which never took place. Appellant testified in his own behalf, and the picture painted by him was one of having been framed or set up. Several questions were propounded on cross-examination about appellant’s failure to produce witnesses to corroborate his story. The appellant was then asked if he knew the Smith brothers and answered that he did. He was further asked if they were willing to “come in here and back up your story.” He responded, “Yes, sir, they are. 1 am quite sure.” The prosecutor then asked Williams if he had heard that the Smith brothers were wanted for murdering a police officer in Missouri. Appellant’s attorney’s objection was overruled.
Appellant argues this questioning was irrelevant to any issue in the case, since the Smith brothers did not testify, and that it was prejudicial and inflammatory. Of course, where an accused takes the stand in his own behalf, he subjects himself to the same rules of cross-examination as any other witness. Montaque v. State, 219 Ark. 385, 242 S.W. 2d 697. Wide latitude is permitted in cross-examination as to contradicting his defense, or to impeach his credibility as a witness. Peterson v. Jackson, 193 Ark. 880, 103 S.W. 2d 640. The limits lie largely within the sound judicial discretion of the trial court. Hollingsworth v. State, 53 Ark. 387, 14 S.W. 41. In the context in which it occurred, however, we must hold that this inquiry was outside the limits of the trial court’s discretion and should not have been permitted.
Appellant challenges the legality of his arrest, arguing that two bench warrants served on him, charging him with burglary and grand larceny, were issued by the circuit court clerk, one not authorized to issue arrest warrants, and without any “independent determination of probable cause by a neutral, detached magistrate as required by the Fourth Amendment of the United States Constitution.” However, appellant admits he was arrested and jailed the day before the bench warrants referred to above were issued. The circumstances surrounding his initial arrest are not set out, leaving us to speculation.
Of course, a police officer can make a warrantless arrest when there are reasonable grounds to believe the person arrested has committed a felony; neither an affidavit of probable cause nor a warrant need be obtained. Ark. Stat. Ann. § 43-403 (Repl. 1964); Ellingburg v. State, 254 Ark. 199, 492 S.W. 2d 904; Jones v. State, 246 Ark. 1057, 441 S.W. 2d 458. “Reasonable grounds” have been treated as virtually synonymous with the probable cause requirement of the Fourth and Fourteenth Amendments. Ellingburg v. State, supra, footnote 1. See also, Johnson v. State, 249 Ark. 208, 458 S.W. 2d 409. The substance of all definitions of probable cause is a reasonable ground for belief of guilt. Brinegar v. United States, 338 U.S. 160, 69 S. Ct. 1302, 93 L. Ed. 1879. On appeal, all presumptions are in favor of the trial court’s ruling and the burden is on the appellant to demonstrate error, which is not done by a mere showing that under some circumstances there might have been error. Smith v. State, 194 Ark. 1041, 110 S.W. 2d 24. He has failed to meet this burden. Furthermore, appellant would not have been entitled to release, even if his arrest had been illegal. West v. State, 255 Ark. 668, 501 S.W. 2d 771. Ellingburg v. State, supra; Perkins v. City of Little Rock, 232 Ark. 739, 339 S.W. 2d 859. Illegal arrest, standing alone, does not void a subsequent conviction. Erisbie v. Collins, 342 U.S. 519, 72 S. Ct. 509, 96 L. Ed. 541.
Because of the error indicated the judgment is reversed and the cause remanded.
Harris, C.J., dissents. | [
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Conley Byrd, Justice.
This is a proceeding pursuant to Ark. Stat. Ann. § 66-4249 (Repl. 1966), by appellants Raymond Fitzgerald, Jr., et al, dissenting stockholders, to recover from the surviving corporation, appellee, Investors Preferred Life Insurance Company, the value of the preferred stock held by the appellants in Universal American Life Insurance Company before a merger of the two corporations. Based upon the report of a single appraiser, agreed upon by the parties, the trial court entered judgment for the stock at a value of $12.50 per share, together with the costs of the appraiser and a reasonable attorney’s fee. The judgment carried interest at a rate of 6% from the date of the judgment. Both appellants and appellee have appealed.
Appellants point out that their preferred stock was purchased for $20.00 per share and that it had a liquidation value of $21.00. They then contend that they are entitled to the liquidation value upon a merger. We find no merit to this contention. First, appellants recognize that a merger is not the same as a liquidation. Second, the record shows that “Universal” had not had sufficient earnings to pay dividends in the last three or more years of its corporate existence and under those circumstances the preferred shares obviously would not necessarily have had a present value equal to a liquidation value that could not be realized until sometime in the uncertain future. Appellants recognize that if there had been an established market for the preferred stock, it would be inequitable to permit them to obtain a higher value for their stock by dissenting to a merger.
The trial court refused to allow interest on the value of the stock between the date of the merger and the date of judgment. In this we think the trial court erred. Ark. Stat. Ann. § 66-4249 (Repl. 1966), provides that a dissenting stockholder ceases to be a stockholder on the date of the merger and that the surviving corporation must make a tender of the fair cash value of the dissenting stock within 30 days of the merger. Since the tender in this instance was less than the fair cash value and the merger, in effect, destroyed the stockholder’s rights, simple justice would require that the assessment of interest from the last day of the statutory tender date to the time of judgment should be awarded. We so hold, notwithstanding the contrary holdings from other jurisdictions with similar statutory provisions. We have consistently held that in cases of conversion the defendant is liable for interest from the date of conversion, Bradley Lumber Co. v. Hamilton, 117 Ark. 127, 173 S.W. 848 (1915). Ark. Stat. Ann. § 66-4249 (Repl. 1966), places on the surviving corporation both the duties of determining the fair cash value and the making of a tender. To deny interest in the circumstances before us would encourage the surviving corporation to shave its estimate of fair cash value since it would have the benefit of the earnings of the money due to the dissenting stockholders during the period before judgment.
On cross-appeal it is contended that the trial court erred in accepting the report of the appraiser because the appraiser took into consideration matters beyond the scope of the appraisal. We find no merit to this contention because the appellee did not raise its objection when it first had the opportunity. The court’s instructions to the appraiser told him that “you may consider anything you deem appropriate in connection with your appraisal of the fair cash value.” Appellee did not object to the actions of the court until the appraisal had been made. At that time it objected to the appraiser’s consideration of the unfairness of appellee’s treatment of the preferred stockholders. Assuming that the appraiser’s report gave a monetary value to the “unfairness of appellee’s treatment of preferred stockholders,” we hold that the objection should have been made to the instructions of the court which permitted this action on the part of the appraiser and that when appellee wáited until after the appraiser had acted in accordance with the court’s instructions, the objection came too late. We pointed out in Smith v. Cummins, 249 Ark. 61, 458 S.W. 2d 140 (1970), that one could not wait until the jury verdict was in, and then, if the verdict were favorable, accept it, but if unfavorable object to it.
In view of the authorization in Ark. Stat. Ann. § 66-4249 for the assessment of a reasonable attorney’s fee for the services of the attorney for the dissenting stockholders, we are directing the trial court upon remand to award an additional $1,000 for the services of the appellants’ attorney in this Court.
Reversed and remanded for entry of a judgment not inconsistent with this opinion. | [
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George Rose Smith, Justice.
In July of 1974 the appellant was charged by information with having committed robbery on April 20, 1972, at a grocery store in Little Rock. The trial court, hearing the case without a jury, found the appellant guilty and imposed a five-year sentence. The appellant questions the sufficiency of the evidence and the trial court’s refusal to grant a continuance.
Upon the first point, the grocery store was run by Burl Elder and his wife. Mrs. Elder testified that Mitchell and another man, armed with pistols, entered the store at about 1:20 p.m., held up the couple, and took money and a carton of cigarettes. Mrs. Elder identified Mitchell in court and testified that she had picked out his picture at the police station two or three weeks after the robbery and that she had also identified him in a line-up in October of 1974. The testimony of this witness is sufficient proof to support the conviction.
As to the motion for a continuance, Officer Bates testified that he showed Mrs. Elder a number of photographs, but he didn’t believe there was a line-up with Mitchell in it. On cross-examination the officer said that he did not have his investigative file with him. He had looked for it on the morning of the trial, but the case had become inactive, “and they have changed the whole system down there.” Officer Bates said that the police file might show if there had been a lineup, but it would not show Mitchell in a line-up. Mitchell denied that he had ever been in a line-up at the Little Rock police station. After both sides had rested the court overruled defense counsel’s motion for a week’s continuance “to give the defendant and his attorney and the Little Rock Police Department an opportunity to locate the police Tile in this cause.”
The granting of a continuance is discretionary. In Jackson v. State, 245 Ark. 331, 432 S.W. 2d 876 (1968), we found no abuse of discretion in the court’s refusal to continue the case when the defense investigation had not been pursued with diligence. In the case at bar the trial was held two years and eight months after the offense (Mitchell having been out of the state), giving rise to a possibility that the police file might not be readily available. There is no showing that defense counsel made any inquiry about the file before the trial.
It is even more significant that no search for the file is shown to have been made after the trial. Although a motion for a new trial is no longer required in criminal cases, such a motion is recognized by the statute and extends the time for filing notice of appeal. Ark. Stat. Ann. § 43-2704 (Supp. 1973). Thus defense counsel actually had much more than the requested one week within which to search for the police file. As the matter stands, we have no assurance either that the missing file can be found or that it contains any information helpful to the defense. Under the circumstances we are unwilling to order a new trial.
Affirmed.
Byrd, J., concurs. | [
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Lyle Brown, Justice.
This is a petition for writ of prohibition asking this court to enjoin the circuit judge of Washington County from proceeding further in a suit for malicious prosecution. There is no dispute about the facts. Plaintiff in the court below alleged in a complaint for malicious prosecution that the petitioner here (defendant below) is a resident of Benton County. The record discloses that service of summons was had in Benton County. Petitioner argues that by reason of her residence in Benton County, and the service of summons upon her in Benton County, the venue is not in Washington County and that Benton County is the correct and only venue of an action of malicious prosecution against her.
Service of summons in this case is governed by Ark. Stat. Ann. § 27-613 (Repl. 1962) which says: “Every other action may be brought in any county in which the defendant, or one of several defendants, resides, or is summoned.” In other words the proper venue for the filing of this cause is in the county of petitioner’s residence or in a county where she may be served with summons, under the provision of the quoted section.
A case very much in point is Baker v. Fraser, 209 Ark. 932, 193 S.W. 2d 131 (1946). In that case Baker filed a civil action for libel in Independence County against Fraser and other parties. The three defendants were all residents of Pulaski County and this court held that the filing of the suit in Independence County and obtaining service in Pulaski County was of no avail. It was held that libel is a transitory action and must be brought in the county where one of the defendants resides or where they may be served with summons. Another case in point is that of International Harvester v. Brown, Judge, 241 Ark. 452, 408 S.W. 2d 504 (1966).
Writ granted. | [
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John A. Fogleman, Justice.
Appellant Sims was tried and found guilty of murder of Mrs. Hazel Elmore in the perpetration of an armed robbery and sentenced to life imprisonment. We find it necessary to reverse that sentence and judgment upon appellant’s first ground for reversal, viz:
CONSTITUTIONAL RIGHTS OF APPELLANT WERE VIOLATED IN THAT APPOINTED COUNSEL FOR APPELLANT WAS NOT NOTIFIED OF A PRETRIAL LINE-UP HELD ONE WEEK PRIOR TO THE TRIAL.
The record indicates that Charles Banks, as public defender, was appointed to represent Sims as early as March, 1974. His trial commenced on October 21, 1974. Clay Elmore, the husband of Mrs. Hazel Elmore, was also a victim of the robbery during which his wife was killed. The robbery took place on March 31, 1973, at Elmore’s service station just off the Highway 140 exit from Interstate Highway 55 near Osceola. He was found wounded and bleeding, lying along the roadside approximately 175 feet from his station, yelling for help. He was taken to the emergency room at Osceola Hospital and arrived there about midnight. Officer Garland Bobo of the Osceola Police Department was on duty there and saw Elmore come to the door of the emergency room crying in a loud, terrified voice that he had been shot. Bobo observed that Elmore had been wounded in his left shoulder and hand by gunfire. He said that Elmore appeared to be in shock. After emergency treatment Bobo rode in an ambulance in which Elmore was transported to a Memphis hospital. Bobo returned about 3:00 a.m. and made a check on certain things, as he had been requested to do by Elmore, who gave Bobo the keys to the station.
While at the hospital, Elmore first told Bobo two black males were the robbers and later said there were three. He was unable to give any other description that night. Bobo also testified that en route to the Memphis hospital Elmore gave him a description of three categories of Chevrolet automobile used by the robbers. According to Bobo, Elmore said the car in which the robbers left was a small new two-tone Chevrolet but gave three different colors. Bobo mentioned the colors blue and black in his testimony but said that he might have recorded them as green and black. Bobo said that at this time Elmore seemed to be in a daze, with consciousness coming and going.
Lt. Moore, Criminal Investigator for the Osceola Police Department, said that he was aware that three black males named Myron Franklin, Robert Earl Richmond and Otis Franklin had been arrested on the morning of Sunday, April 1 on Elmore’s description of the automobile. These three, who were apprehended as they approached Osceola from the Interstate Highway, were photographed and fingerprinted while they were in custody for about an hour and a half. Moore took a stack of photographs which included photographs of these three persons to the hospital in Memphis later in the week and showed all of them to Elmore, who picked out the photographs of these three. Moore said that Elmore was under medication and in no condition to give further information. He stated that it was evident that Elmore was not coherent or mentally alert at the time.
When Clay Elmore was called as a witness, Banks requested an in camera hearing, saying that he anticipated that Elmore would be asked to identify appellant. Banks sought the hearing in order to explore the facts pertaining to a lineup identification of Sims by Elmore at the jail in Osceola during the week preceding the trial, in the absence of Banks. The prosecuting attorney candidly admitted that the lineup was held and that Elmore had then positively identified Sims as one of the three persons who participated in the robbery and murder of Mrs. Elmore. The prosecuting attorney stated that he did not propose to make any mention of the lineup, because Elmore had said that he could identify Sims upon the basis of the opportunity to observe him during the commission of the crime, and not from viewing him in the lineup. He further explained that the lineup was for the state’s benefit in order to determine whether Elmore could positively and without doubt identify Sims as one of those guilty of the crime. The trial judge suppressed any and all facts, circumstances and statements pertaining to the lineup, but held that the state would be permitted to call Elmore for the purpose of identifying Sims, if he could, even though nothing could be said about a lineup. The court also expressly gave defense counsel permission to go into the matter during this testimony.
On direct examination, Elmore positively identified Sims, saying that he first saw appellant standing in the door of the service station with a rifle in his hand. He related the story of the brutal murder of his wife in the men’s restroom, saying that Sims stood at least three feet away in the door with his rifle, while another robber shot her twice with a pistol. A third shot wounded Elmore. Elmore said that the whole episode covered a period of about four minutes.
On cross-examination, Elmore admitted that his testimony was highly emotional, as might be expected. Elmore said he had gone to Blytheville to see Sims in the jail there, because he just wanted to look at him, but the sheriff would not permit him to do so. He admitted having been present when Sims was arraigned at the preceding term of court. When asked to describe Sims without looking at him, Elmore said that he did not measure the defendant to see how tall he was and didn’t know how much he weighed. He said that at the time of the robbery Sims’ hair “bushed out” more than it did in the courtroom. He could not describe the clothing worn at the time of the robbery by the man he said was Sims. He admitted having seen Sims a few days previously in court and when, on another occasion, a sheriff’s office had brought Sims to the lobby of the courthouse for a drink of water, as well as on the occasion of the lineup. Elmore said that all those in the lineup were dressed alike and wore white shirts. Although he said he only wore glasses when making out credit cards, he put them on when he viewed Sims in the lineup at the jail, because he had to look through two “bunches” of wire and wanted to be sure. He also stated that when he saw Sims, he did not look at the four other persons in the lineup. Elmore testified that he did not remember being shown any photographs the evening of April 7 at the hospital in Memphis, saying that he was “doped up” at the time. Elmore said that the whole robbery episode occurred “pretty fast” and that his back was toward the robbers when he and his wife were taken to the bathroom where she was killed and he was shot.
No testimony about the composition of the lineup or what occurred at that time except that of Elmore appears in the record. It is clear that Banks had been appointed as appellant’s attorney at that time but was neither present nor notified. At the conclusion of the state’s evidence, appellant moved for a directed verdict because there was no evidence to connect him with the crime other than Elmore’s identification.
The Attorney General candidly admits that appellant and his attorney should have been notified of the lineup and the attorney given an opportunity to be present in order to meet the constitutional requirements set out in United States v. Wade, 388 U.S. 218, 87 S. Ct. 1926, 18 L. Ed 2d 1149 and Gilbert v. California, 388 U.S. 263, 87 S. Ct. 1951, 18 L. Ed. 2d 1178. He also agrees that when a lineup is conducted without the presence of accused’s counsel, the State must establish by clear and convincing evidence that the subsequent courtroom identification by a witness who identified the accused in such a lineup was based upon independent observation rather than upon the constitutionally infirm lineup procedure. Montgomery v. State, 251 Ark. 645, 473 S.W. 2d 885; United States v. Wade, supra. On this point, the state relies entirely upon the argument that there was clear and convincing evidence that Elmore’s courtroom testimony was not tainted by the lineup.
This question has troubled us considerably. We recognize that the circuit judge had an advantage this court does not, because of his opportunity to observe the witness and his courtroom identification. If only a simple preponderance of the evidence was sufficient to establish that Elmore’s courtroom identification was not tainted, we might well hold with the state in this case. We might have to rely upon the trial judge’s findings because we could not say they were clearly against the preponderance of the evidence. But when we look to the Wade tests, we cannot say that the requirements of Wade recognized in Montgomery were met on the record before us, particularly in view of the fact that the only real issue in the case, i.e., identification of Sims, turned upon this testimony alone, as appellant’s attorney aptly pointed out in the trial court. It is also significant that here, as in Wade, the lineup was conducted to “crystallize the [witness’] identification of the defendant for future reference.” In Wade, some factors to be considered in determining whether the identification was tainted were enumerated as examples. Among them were:
1. Prior opportunity to observe the criminal act.
2. The existence of any discrepancies between any prelineup description and the defendant’s actual description.
3. Any pre-lineup identification of another person.
4. Lapse of time between the alleged act and the lineup identification.
5. Facts disclosed concerning the conduct of the lineup.
The opportunity of Elmore to observe the robber he said was Sims was probably sufficient, although it was subject to some limitations. Regardless of the reasons, there were discrepancies between pre-lineup descriptions and pre-lineup identifications of others and the description of Sims and his in-court identification. There was a lapse of more than 18 months between the crime and the trial, during which Elmore may well have been influenced by suggestion, arising from his having observed the accused in custody and at pretrial proceedings. No doubt these matters raised a question in the minds of those conducting the prosecution about Elmore’s ability to eliminate any reasonable doubt about the identity of this person who participated in the robbery. This question was serious enough to cause them to satisfy themselves about Elmore’s ability in this important respect in the absence of defense counsel, who would undoubtedly seize upon any hesitation on the part of Elmore and any additional discrepancies that might arise. However commendable their motivation to be sure that they were not asking a jury to convict the defendant of a serious crime upon uncertain testimony, the method pursued did not pass constitutional muster. The very basic purpose of Wade and Gilbert, i.e., to permit accused’s counsel to be prepared for searching cross-examination, was subverted.
In a dissent it is urged that we should consider the failure to advise appellant’s attorney of the lineup as harmless error. This suggestion overlooks the fact that the failure to advise the attorney is not the issue. The question is whether the in-court identification of appellant was tainted by an unconstitutionally conducted lineup and inadmissible for that reason. We cannot say that the error was harmless when there is absolutely no other evidence to connect appellant with the crime, and appellant was deprived of his attorney’s ability to cross-examine the identifying witness about the lineup from personal observation of the proceeding. As we understand the rule, before an error of constitutional proportions may be considered harmless, it must be harmless beyond a reasonable doubt, and we must be able to say that untainted evidence of the defendant’s guilt was overwhelming before we can even consider whether the error is harmless. Harrington v. California, 395 U.S. 250, 89 S. Ct. 1726, 23 L. Ed. 2d 284; Freeman v. State, 258 Ark. 617, 527 S.W. 2d 909 (1975). Of course, when, as here, there is no other evidence, the harmless error rule cannot be applied.
We are not ignorant of the record of appellant’s testimony on motion to suppress an alleged confession for involuntariness, which was suppressed by the circuit judge. We are fully aware of the fact that, on cross-examination of Sims at this hearing in chambers, the following took place:
Q. Well, your accomplices, Freddy Orr and this Charles Coleman, were present with you at the time of this killing, weren’t they, and, or you were present with them there?
A. Yes.
Q. So when you confessed to participating in this robbery, and—
MR. BANKS: If the Court please, we are going to object to that line of questioning. I don’t see it is relevant to this particular hearing on the voluntariness.
COURT: What was your question?
MR. PEARSON: When he confessed to participating in this robbery and confessed to participating in this killing it was true?
A. I had done—
COURT: The objection will be overruled.
A. I had done listened to the statement Orr and Coleman had given to the Sheriff, and I know exactly what they had.
Q. When you had denied to the sheriff and the officers present several times, that you weren’t there and didn’t participate and didn’t know anything about it, you were lying, weren’t you?
MR. BANKS: If the Court please, your honor, I have to object to that point also. He is requiring this man to testify against himself, and we are here to determine whether or not this confession is voluntary on his part; not to go into what the confession is.
MR. PEARSON: It goes to his credibility, your honor.
COURT: This objection will be sustained.
Q. All right, you did at first deny several times having participated in or been present at the time of the killing, did not not?
A. Right.
Q. And later then did make a truthful statement to them as to your part in the robbery and killing, did not not?
A. Yes, on tape.
Q. Why did you, after first denying it, then change your mind and tell them the truth about what happened?
A. Because I was—
MR. BANKS: If the Court please, your honor, I am sorry to have to object, but the prosecuting attorney is couching his questions in terms to make this man testify against himself. He is not asking him something about the voluntariness of the confession. He is asking about whether or not he told the truth.
COURT: The objection will be overruled. You may proceed.
It is self-evident these answers could not possibly have been used by the state as evidence-in-chief. Even though the court’s rulings on the objections made by appellant’s attorney seem inconsistent, the questions were improper and the answers could not be considered for any purpose, even on the question of voluntariness. Lego v. Twomey, 404 U.S. 477, 92 S. Ct. 619, 30 L. Ed. 2d 618 (1972); Rhone v. State, 254 S. 2d 750 (Miss., 1971); Washington v. Commonwealth, 214 Va. 737, 204 S.E. 2d 266 (1974); State v. Burke, 27 Wis. 2d 244, 133 N.W. 2d 753 (1965); State v. Thomas, 208 La. 548, 23 S. 2d 212 (1945); Isbell v. State, 44 Ala. App. 69, 202 S. 2d 555 (1967); U.S. v. Inman, 352 F. 2d 954 (4th Cir.) (1965); People v. Lacy, 25 A.D. 2d 788, 270 N.Y.S. 2d 1014 (1966). Even if appellant had not objected to the questions asked him in camera, his answers would not have been admissible during the jury trial. Hawkins v. State, 193 Miss. 586, 10 S. 2d 678 (1942). An accused has the right to limit his testimony in a Denno hearing to the question of voluntariness of an alleged confession, and neither his testimony relating to this issue nor his failure to object to cross-examination on the merits of the case is a waiver of his constitutional right against self-incrimination. Hawkins v. State, supra; Washington v. Com monwealth, supra; People v. Walker, 374 Mich. 331, 132 N.W. 2d 87 (1965). See also, State v. Burke, supra; State v. Thomas, supra.
Any doubt about the inadmissibility of admissions wrung from the accused by this cross-examination is laid to rest by Simmons v. United States, 390 U.S. 377, 88 S. Ct. 967, 19 L. Ed. 2d 1247 (1968). In that case, the court said:
The rule adopted by the courts below does not merely impose upon a defendant a condition which may deter him from asserting a Fourth Amendment objection — it imposes a condition of a kind to which this Court has always been peculiarly sensitive. For a defendant who wishes to establish standing must do so at the risk that the words which he utters may later be used to incriminate him. Those courts which have allowed the admission of testimony given to establish standing have reasoned that there is no violation of the Fifth Amendment’s Self-Incrimination Clause because the testimony was voluntary. As an abstract matter, this may well be true. A defendant is “compelled” to testify in support of a motion to suppress only in the sense that if he refrains from testifying he will have to forgo a benefit, and testimony is not always involuntary as a matter of law simply because it is given to obtain a benefit. However, the assumption which underlies this reasoning is that the defendant has a choice: he may refuse to testify and give up the benefit. When this assumption is applied to a situation in which the “benefit” to be gained is that afforded by another provision of the Bill of Rights, an undeniable tension is created. Thus, in this case Garrett was obliged either to give up what he believed, with advice of counsel, to be a valid Fourth Amendment claim or, in legal effect, to waive his Fifth Amendment privilege against self-incrimination. In these circumstances, we find it intolerable that one constitutional right should have to be surrendered in order to assert another. We therefore hold that when a defendant testifies in support of a motion to suppress evidence on Fourth Amendment grounds, his testimony may not thereafter be admitted against him at trial on the issue of guilt unless he makes no objection.
True it is that this langugage was used with reference to a motion to suppress the fruits of a search and seizure, but it has been applied to cases involving confessions. Lindsey v. Craven, 365 F. Supp. 948 (C.D. Cal., 1973). We cannot conceive of any reason that could be given for not applying the rule of Simmons to any and all motions to suppress evidence.
We do not mean to say that Elmore’s testimony must necessarily be excluded on a retrial if testimony other than that before us should be developed. Here, as in Gilbert, we are told little about what occurred at the lineup. For instance, the only testimony about the composition of the lineup was that of Elmore that all five persons wore white shirts. No one ever undertook to show any resemblance or differences in the appearances of the people whose photographs Elmore picked out and the perpetrators of the crime, or any reason for misidentification and misdescription other than that Elmore was under medication and perhaps in shock.
We have heretofore avoided requiring an independent hearing of the Denno type in every case where the admissibility of in-court identification testimony is questioned on the assertion that it is tainted by pretrial procedures. We have recently held that such a hearing should be conducted in a particular case. Wright v. State, 258 Ark. 651, 528 S.W. 2d 905 (1975). This is another such case. The time has come to address ourselves more directly to the basic question whether such hearings are required. Under our own law, there are many inquiries that might be addressed to the question of admissibility, that could not be permitted in eliciting direct evidence. See Trimble & Williams v. State, 227 Ark. 867, 302 S.W. 2d 83; Spivey & Payne v. State, 247 Ark. 752, 447 S.W. 2d 846. It is extremely difficult to determine the question of admissibility when the entire examination, particularly direct examination, is conducted in the presence of the jury. There is, to say the least, a strong suggestion in a statement of the United States Supreme Court in Gilbert v. California, supra, viz: “The admission of the in-court identification without first determining that they were not tainted by the illegal lineup but were of independent origin was constitutional error.” We are fully aware of the fact that this specific question was not raised in the trial court, but it seems essential that we treat it for the guidance of the court on retrial. We now conclude that, in cases tried after this date, an in-chambers hearing should be conducted to determine admissibility of in-court identification testimony whenever an objection is made on the ground that it is tainted by unconstitutional pretrial identification lineup or “showup” procedures. It may well be that the trial court cannot make a final determination without a courtroom attempt at identification, but this should not be done in the presence of the jury. Furthermore, in such a hearing witnesses other than the person giving identification testimony may be heard on the question of admissibility, even though their testimony might not be admissible in the trial. In this case the state, on the record before us, has not met its burden of proof on the admissibility of the identification. On retrial, other available evidence on the subject should be heard.
There are other questions which are not likely to arise upon a new trial. We will discuss those that are likely to arise, i.e., the argument that the evidence of death was insufficient and that a mistrial should have been declared on account of statements of the prosecuting attorney in closing argument.
There was testimony as to cause of death by a mortician. Police Officer Riney found Mrs. Elmore lying on the service station restroom floor on which he saw bloodstains near the spot where her head was lying. He found no pulse, but did find two gunshot wounds, one of which was in her head and the other in her breast. She appeared to him to be dead. The mortician, who had examined many bodies with gunshot wounds during his 30 years of experience, and who had also had occasion to ascertain from powder burns the proximity of a weapon inflicting a wound in bodies, found a bullet hole about an inch below Mrs. Elmore’s left breast, which he classified as an entrance wound because of the presence of powder burns. He found an exit wound about one inch below her right shoulder blade. He found in her left ear a wound he called an entry wound because of powder burns, and a larger exit wound about one inch below and one inch to the right of her right ear. He testified that Mrs. Elmore was dead and that in his opinion her death was caused by these gunshot wounds. Mrs. Elmore’s body was at the hospital when he picked it up. A photograph of Mrs. Elmore’s body as it was found on the restroom floor was made and introduced. Elmore testified that he left his wife because he knew she was dead.
Appellant’s argument on this point apparently hinges upon the absence of evidence of the results of an autopsy or a medical doctor’s opinion of the cause of death. This is not required in every case. We have heretofore held that Ark. Stat. Ann. § 42-611 et seq. (Supp. 1973) did not affect the admissibility of evidence of death or the cause of death of a victim of a crime by a medical expert on or an autopsy report prepared by a medical expert other than the state medical examiner. Stewart v. State, 257 Ark. 754, 519 S.W. 2d 733. We have also held that the testimony of an attending physician or surgeon on the subject may be admitted without reference to an autopsy. Stewart v. State, supra. Furthermore, expert testimony is not always required. No statute or judicial decision has impaired the efficacy of Edmonds v. State, 34 Ark. 720, where we held that both the fact of death and cause of death might be shown by strong and unequivocal circumstantial evidence such as to leave no ground for reasonable doubt, and that, where there is some proof of the corpus delecti, its weight and sufficiency is properly left to the jury. See also, McDaniels v. State, 187 Ark. 1163, 63 S.W. 2d 335. It has been said that the most satisfactory evidence of the fact of death is the testimony of those who were present when it happened or who, having been personally acquainted with the deceased, have seen and recognized his body after life is extinct. Cavaness v. State, 43 Ark. 331. There is no requirement that there be medical testimony. Glover v. State, 211 Ark. 1002, 204 S.W. 2d 373.
In McDaniels we held the evidence sufficient to show cause of death when it was shown that a deceased was shot through the left eye, below the heart and in the leg and that an undertaker shortly thereafter took charge of the body. We also took into consideration there direct and positive testimony of the undertaker that the victim was shot in such a manner as to produce death. The evidence here was sufficient. See Mosby v. State, 253 Ark. 904, 489 S.W. 2d 799; Johnson v. State, 120 Ark. 193, 179 S.W. 361; Outler v. State, 154 Ark. 598, 243 S.W. 851.
Appellant objected to the prosecuting attorney’s reference to testimony as uncontradicted and undenied, as a comment on defendant’s failure to testify, and moved for a mistrial. Overruling the objection and refusing to declare a mistrial was not error. Moore v. State, 244 Ark. 1197, 429 S.W. 2d 122; Edens v. State, 235 Ark. 996, 363 S.W. 2d 923; Ferrell v. State, 177 Ark. 742, 9 S.W. 2d 15; Davis v. State, 96 Ark. 7, 130 S.W. 2d 547.
The judgment is reversed and the cause remanded for a new trial.
Jones, J., dissents.
Roy, J., not participating.
It should be noted that Elmore did not appear and testify at this hearing. His purported ability to identify the robber was stated only by the prosecuting attorney’s recall of statements purportedly made by Elmore. | [
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George Rose Smith, Justice.
In March, 1974, the appellant was found guilty of burglary and was sentenced to 21 years in the penitentiary. He did not appeal. Later on he filed the present petition for postconviction relief under Criminal Procedure Rule 1. In appealing from the denial of his petition he argues four grounds for reversal.
First, we find no denial of the appellant’s right to a speedy trial. After the information was filed in 1972, Smith escaped from jail and left the state. He was arrested in Mississippi and sentenced to prison there. He concedes that it was then his duty to affirmatively request a trial in Arkansas in order to set our statute in motion. Randall v. State, 249 Ark. 258, 458 S.W. 2d 743 (1970). His only request, however, was made under our statutory Interstate Agreement on Detainers. Ark. Stat. Ann., Title 43, Ch. 32 (Supp. 1973). That request was ineffective, because Mississippi had not adopted the statute and hence was not a party to the interstate agreement. Young v. State, 254 Ark. 72, 491 S.W. 2d 789 (1973). Smith was promptly tried after he was returned to Arkansas.
His second and third contentions assert matters that occurred before trial: That bail was fixed in an excessive amount, and that conditions in the county jail were so insanitary and oppressive as to constitute cruel and unusual punishment. Neither point falls within the scope of Rule 1. The denial of bail is not a ground for the dismissal of criminal charges, Small v. City of Little Rock, 253 Ark. 7, 484 S.W. 2d 81 (1972), and certainly does not affect the validity of the sentence. Jail conditions fall in the same category, there being no contention that the conditions complained of affected the petitioner’s trial or sentence.
Fourth, it is argued that some of the prospective jurors, before the trial began, overheard a discussion about the merits of the case and about the appellant’s criminal record. At the Rule 1 hearing the petitioner testified that after the trial someone told him about the incident. The rules of evidence apply to such a hearing. Lewis v. State, 251 Ark. 128, 471 S.W. 2d 349 (1971). Hence the trial court properly sustained an objection to the petitioner’s testimony, as it was hearsay.
Affirmed.
Fogleman, J., not participating. | [
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Carleton Harris, Chief Justice.
Frank James Freeman, Clarence J. Rolan»!, Jr., and Herod Louis Boyd, appellants herein, were charged and convicted of possessing, with intent to deliver, a controlled substance, namely heroin, the jury fixing the punishment of each at 30 years imprisonment in the Arkansas Department of Correction. From the judgment so entered, appellants bring this appeal. For reversal, three points are argued, which we proceed to discuss.
“I.
THE COURT ERRED IN OVERRULING THE MOTION FOR CONTINUANCE.”
The record reflects that appellants Freeman and Roland were arrested on July 10, 1974, and thereafter had contact with an attorney who apparently arranged to represent them. On September 26, 1974, one day before trial, Roland and Freeman filed a motion for continuance, stating that they had learned they were required to pay a fee of $5,000 each to the attorney, and that it was impossible for them to pay such a fee; that they had been assured that they would be defended by the attorney up until September 18, at which time they were informed that he would not defend them; that they then contacted present counsel and made arrangements to employ him; that they had been offered the services of the public defender’s office of Washington County, but preferred to retain their own counsel. It was asserted that it was impossible for present counsel to prepare fully and completely to defend them in the time allowed, and a continuance of not less than two weeks was sought. This motion was evidently presented to the court on the day of trial, and denied. Of course, a ruling upon a motion for continuance is within the sound discretion of the trial court, and the action of that tribunal will not be reversed absent a clear abuse of discretion. Nowlin v. State, 252 Ark. 870, 481 S.W. 2d 320 and Perez v. State, 236 Ark. 921, 370 S.W. 2d 613. In Perez, it was pointed out that the burden rests on an appellant to demonstrate an abuse of discretion by the trial court in denying a continuance. Actually, we have a number of cases where no abuse of discretion was found which involved lesser periods of time for preparation than in the instant case. In Brown v. State, 252 Ark. 846, 481 S.W. 2d 366, we upheld the denial of a motion for continuance where a defendant changed counsel five days prior to trial; in Gathright v. State, 245 Ark. 840, 435 S.W. 2d 433, a like ruling was upheld where new counsel was employed seven days prior to trial, and in Ebsen v. State, 249 Ark. 477, 459 S.W. 2d 548, we likewise found no abuse of discretion where counsel was retained three days prior to trial after previous counsel had withdrawn due to the appellant’s failure to pay him. In the case before us, counsel was retained nine days in advance of the trial.
It might be pointed out that appellants have not shown in their motion, nor their brief, how, or why, they were in capable of preparing an adequate defense, i.e., there are no facts alleged or shown, only a bare allegation that there was not enough time.
The motion also includes an allegation that counsel had “been informed on September 25, 1974 of articles in the newspaper concerning said case that tend to prejudice the citizens of Washington County against these defendants and that an application for change of venue may be necessary to protect the rights of these defendants.” This phase of the motion that a continuance should be granted is not mentioned in the argument, but, of course, we could hardly find an abuse of discretion where an attorney merely alleges that he might find it necessary to subsequently file an application for change of venue. We hold that the court did not err in failing to grant the motion.
“II.
THE COURT ERRED IN OVERRULING THE MOTION FOR A MISTRIAL ON ACCOUNT OF NEWSPAPER AND RADIO PUBLICITY.”
After 12 jurors and an alternate had been seated, a motion for mistrial was made which was heard by the court in chambers. This motion was based on the fact that a Fayetteville newspaper had, on either the same day the trial commenced (Friday, September 27, 1974) or Thursday, September 26, published an article to the effect that a fourth defendant had pleaded guilty to the charge, and a smaller article appearing in a Springdale newspaper was to the same effect. Both mentioned that the trial of the three appellants was commencing “today,” and mentioned appellants by name, and the Fayetteville newspaper article set out some of the details relative to the arrests. It appears that there had also been radio “spots.”
It is argued that publication of these articles was prejudicial to the rights of appellants, but under the circumstances as shown by the record, we cannot agree. The court very carefully questioned the jurors as to whether they had read the news article, and all answered in the negative. The court then further addressed the jury as follows:
“THE COURT: Mr. Carlson, Mrs. Stubblefield, Mrs. Karp, Mrs. Caudle, Mrs. Miller, Mrs. Lewis, Mr. Cheatham, Mrs. Canup, Mrs. Bradshaw, Mr. Barnes, Mrs. Pruitt, Mr. Carter, Mrs. Burgess, I will ask all thirteen (13) of you individually. You have not heard anything today or heard anything yesterday about it by word of mouth or any news media whatsoever?
(All answer, “No” and shake their heads negatively.)”
Of course, a mere reading of a newspaper account of an incident does not, in itself, disqualify a juror since the juror might be able to put aside any opinion formed. Davis v. State, 251 Ark. 771, 475 S.W. 2d 155, and Glover v. State, 248 Ark. 1260, 455 S.W. 2d 670. But were it otherwise, there still would be no merit in appellants’ contention, for here we have every member of the jury stating that they had not read the articles nor heard news comment. Certainly, it cannot be assumed that these jury members prevaricated in answering the court’s questions.
“HI.
THE COURT ERRED IN ADMITTING IN EVIDENCE THE PISTOLS ALLEGEDLY FOUND IN THE AUTOMOBILE OCCUPIED BY THE DEFENDANTS, ROLAND AND FREEMAN.”
The officers, who apparently had information of the purported drug activities of appellants, had arranged a stakeout at a motel where a plainclothes officer was to make a purchase. Police personnel observed a Maverick automobile, in which appellants came to the motel, park at a service sta tion near the motel. After the sale was made, appellants were arrested as they sat in this car. Near one of the appellants, on the backseat, was a nickelplated revolver, and on the right floorboard was a brown paper sack which contained a fully loaded pistol. These weapons were offered into evidence at the trial by the state and appellants contend that this constituted error, stating, “These pistols had absolutely nothing to do with the crime charged.” As authority for the position taken, appellants cite the case of Cabbiness v. State, 241 Ark. 898, 410 S.W. 2d 867. We do not consider Cabbiness as authority to sustain appellants’ argument. There, Cabbiness, a resident of Little Rock, was charged with a burglary occurring in Berryville, Arkansas. After his arrest, police illegally searched his apartment in Little Rock and found a revolver. This revolver was described to the jury before the trial court upheld an objection to the evidence. The prosecuting attorney made another reference to the revolver and Cabbiness moved for a mistrial. This motion was denied, but the trial court polled the jurors, each of whom stated that he could disregard the reference to the revolver. In reversing the judgment of conviction, this court pointed out that the pistol and any reference to it were inadmissible on two grounds, first, because it was the fruit of an illegal search, and second, it was not related to the crime for which defendant was being tried; it was observed that the error was not cured by the subsequent poll of the jury “which tended to emphasize the error rather than to correct it.” While this is the only case relied on by appellants, we think it well to mention two others, Rush v. State, 238 Ark. 149, 379 S.W. 2d 29, cited in Cabbiness, and Everett v. State, 231 Ark. 880, 333 SW. 2d 233, cited in Rush. In Rush v. State, supra, the defendant was charged with killing his stepfather with a .22 caliber rifle, in conspiracy with two other individuals. A .22 caliber pistol was offered into evidence by the state. Without going into detail, let it suffice to say that this pistol admittedly was not used, and further, had no connection with the murder. We said:
“The pistol in question is very heavy for a .22 caliber; it has a 9-inch barrel, and is rather wicked looking. The very fact that the pistol was admitted in evidence could have had a tendency to confuse the jury, notwithstanding there is no contention on the part of the State that the pistol was used in the killing. In these circumstances we do not think the pistol was admissible in evidence. Everett v. State, 231 Ark. 880, 333 S.W. 2d 233.”
In Everett, the defendant was charged with murder in a shooting death resulting from a barroom fight. Also, state witnesses testified that several knives had been found in the area. There was no contention that Everett or the victim had used a knife, nor did any witness so testify, and this court, in reversing, held that the introduction of the testimony relating to the knives was irrelevant to the charge of murder, and noted that no showing had been made that the testimony was not prejudicial.
We think it is apparent that the circumstances mentioned in these cases are entirely different from the circumstances of the case at issue. Certainly, in Cabbiness, a pistol obtained by an illegal search from a man’s home, miles away from the scene of a crime, and no contention being made that Cabbiness was in possession of a pistol during the burglary, was not proper evidence. Nor could weapons offered in evidence which were not connected with the crime have any probative value whatsoever; not only that, the introduction of such weapons could be confusing, as pointed out in Rush.
Here, however, we think the pistols were relevant to the issue for which appellants were standing trial. We would think it to be a matter of common knowledge that narcotics transactions are frequently attended by morally offensive circumstances, and immoral participants. The possession of two pistols by the appellants at the time such transaction was allegedly attempted would appear to have some probative force on the question of what business the men were about. The early case of Carr v. State, 43 Ark. 99 (1884) appears to be a leading decision in this state on admissibility of evidence comprising the res gestae of a criminal offense. There, the court explained the principle of res gestae as follows:
“Res gestae are the surrounding facts of a transaction, explanatory of an act, or showing a motive for acting. They are proper to be submitted to a jury, provided they can be established by competent means, sanctioned by law, and afford any fair presumption or inference as to the question in dispute .... Now circumstances and declarations which were contemporaneous with the main fact under consideration or so nearly related to it as to illustrate its character and the state of mind, sentiments or dispositions of the actors are parts of the res gestae.”
In the very recent case of Turner v. State, 258 Ark. 425, 527 S.W. 2d 580, we again had occasion to comment:
“Circumstances so nearly related to the main fact under consideration as to illustrate its character and the state of mind, sentiment and disposition of the actor are parts of the res gestae, which embraces not only the actual facts of the transaction and the circumstances surrounding it, but also matters immediately antecedent to and having a direct causal connection with it, as well as acts immediately following it and so closely connected with it as to form in reality part of the occurrence.”
The state introduced this evidence as another circumstance to indicate the criminal intent of appellants. We are of the view that the possession of a loaded weapon, in the vicinity of the attempted sale, by those charged with possession with intent to deliver heroin, and found in the automobile in which the heroin had been brought to the site of the transaction, involving thousands of dollars, is part of the res gestae and pertinent evidence on the question of intent. The court did not err in admitting the pistols in evidence.
Affirmed.
Freeman and Roland were represented by the same attorney, and Boyd was represented by separate counsel, not counsel here representing Boyd on appeal.
Boyd did not file such a motion..
The date of the plea of the fourth defendant is not clear because the Springdale newspaper reported that the plea was entered on “Thursday,” while the Fayetteville newspaper, which is dated Friday, September 27, states the plea was entered “Today”; this difference is not pertinent to the conclusion reached.
The newspaper articles referred to under the first point were not mentioned in the motion for a mistrial.
The record does not reflect whether this revolver was loaded.
In Stewart and McGhee v. State, 257 Ark. 753, 519 S.W. 2d 733 (1975), we affirmed first degree murder convictions. Evidence reflected that several persons, including appellants, went to the home of the victim, who, according to testimony, dealt in drugs, for the purpose, according to witnesses, “to take some dope and we would get it with a gun if it was necessary. ” The victim was killed at the door of his apartment.
This particular attempted sale (10 plastic containers, each containing heroin), never consummated, involved $16,000.00. | [
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John A. Fogleman, Justice.
This appeal brings into sharp focus the conflict between private property rights and the right of municipal government to control the owner’s use of property. The particular question is the extent to which an owner has freedom to the use of his property after the adoption of a zoning ordinance which results in the use not being in conformity with uses permitted in the area in which it is located. The particular question is without precedent in this state and it presents the usual difficulties experienced in achieving the appropriate balance between right of an individual to free use and enjoyment of his property and equally important rights of society in the interest of the public welfare.
On August 3, 1965, appellant purchased a five-acre tract of land lying along Springdale Road between the city limits of Helena and those of West Helena. In 1966, he began developing the tract as a mobile home park. The topography of the tract was such that development was started on the east side, where 12 mobile home spaces were first laid out, after which a 20-foot road to serve these lots and 13 others was con structed and the 13 additional spaces were laid out on the west side of this road. The ground level was much lower west of these spaces and a septic tank to serve these 25 spaces was placed in this area.
Sometime in October, 1966, the first mobile home was placed on one of the first 12 lots. Water was available to these lots by a connection to the Helena water system. Electricity was also available. Problems developed with reference to the sewer system and the state health authorities restricted occupancy to no more than four mobile homes with the existing sewer system and recommended connection to a city sewer system. Appellant found the cost of connection to the Helena sewer system prohibitive and no West Helena sewer lines were available.
Sometime in 1968, appellant employed Cline-Frazier Consulting Engineers, who completed detailed plans in June, 1968, for further development of appellant’s property, which was then named Springdale Village Trailer Park, and was to consist eventually of a total of 44 lots. These plans were submitted to the Arkansas State Board of Health on June 13, 1968, and approved by its Bureau of Environmental Engineering on June 17, 1968.
On February 17, 1969, the County Court annexed appellant’s property, with other lands, to the City of West Helena and the order of annexation was finally affirmed here on February 22, 1971. See Kalb v. City of West Helena, 249 Ark. 1123, 463 S.W. 368. On December 8, 1971, the City of West Helena adopted Ordinance 1020 to govern zoning in the annexed area. By this ordinance, this property of appellant Blundell was classified as “Residential R-A” making its use as a mobile home park non-conforming because such parks are permitted only in commercial zones in West Helena. West Helena sewer lines had been extended to the property in September 1971, and appellant granted the city a 20-foot easement for these lines. He then disconnected his septic tank system and made connection with the city sewer line. After continued development of the property, Blundell’s application to the City of West Helena for a permit for an electrical connection, i.e., for the placing of a meter and furnishing of electricity on one of the first 25 lots laid out, but not one of the first 12, was rejected in January 1974, on the ground that this would be an extension of a non-conforming use. Blundell then brought this suit to require the issuance of the permit and to establish his right to continue his development of his entire tract of land, or in the alternative, the first 25 lots, as a mobile home park.
The chancery court resolved the conflict in favor of the community’s interest in public welfare and development and against Blundell’s interest in the use of his property, denying him any relief and holding that the extension of the use of the facilities beyond the first 12 lots would be an impermissible extension of a non-conforming use. We disagree with the learned chancellor as to the particular space involved and as to all the first 25 lots but not as to any contemplated use of the remainder of the property for mobile home spaces.
The chancellor is to be commended for his exhaustive study of legal authorities and of the record. As a result the issues are brought into sharp focus. Portions of his opinion set out pertinent facts and issues. Among other things, he said:
....it is apparent that the plaintiff purchased this five-acre tract with the intention of utilizing all of it as a trailer park to accommodate some forty-four trailers. All his actions in employing engineers to plan and advise and prepare a plat for that development confirm this. At the time his land was annexed and zoned by the City of West Helena. . . he had only four or five lots actually in use for the intended purpose. His delay in extending further by that time was due in part to difficulty encountered with septic tank systems and financial inability to connect with existing sewer lines. Whatever the reason, the fact remains that at the time of the enactment in question his actual use was thus limited and he has extended that use since that date to include 12 such lots, all located on a line extending north and south along his east line. . .
It is plaintiff’s position that his purpose at the time of purchase coupled with investment of funds in his contemplated expansion extends his use to the full limit of the tract. It is the position of the city that he is limited to the area actually appropriated for that use at the time of the enactment.
*****
These basic concepts are not seriously questioned here. What plaintiff does question here is the power of the City to restrict his prior use to the area of actual use prior to the enactment. It is his position that the City cannot so restrict him but must under the ordinance and the circumstances permit him to enlarge his use to the full limits of his tract; that his actual appropriation of a part of the tract for this use prior to the enactment, coupled with his contemplated full use and expenditures give him that right.
. . .[T]he vast weight of authority supports the sounder view that the purpose of all such legislation is to channel the growth and development of the community for the best interest of all its citizens, and that prohibited uses, though permitted to remain, should be diminished, restricted and discouraged rather than nurtured and expanded.
The courts appear to be in agreement that this intention and purpose must be found within the particular enactment and if clearly stated therein should be given effect in accomplishing that purpose to the extent therein expressly provided.
The courts appear to be in universal agreement that such legislation, being in derogation of common law, must be construed most strictly in favor of the landowner in every respect, including the determination of the restriction and its extent.
We differ with the chancellor very little as to the principles he stated. The real basis of our difference is in the application of these principles to the facts in the case. The chancellor’s opinion is bottomed to a great extent upon language of the West Helena zoning ordinance relating to non-conforming uses. Pertinent provisions are as follows:
Section 2. Definitions. M — Non-conforming. A building or a use of land existing at the time of enactment of this Ordinance, and which does not conform to the regulations of the District or the Zone in which it is situated.
*****
Section 18. Non-conforming Use and Structures.
1. Alterations, repairs, restoration:
A. Any non-conforming structure or portion thereof declared unsafe by proper authorities may be restored to a safe condition after being recommended by the Planning Commission and approved by the City Council.
B. Any non-conforming structure may not be reconstructed or structurally altered during its life to an extent exceeding an aggregate cost 66% of the appraised value at the time of the construction of the building, unless said building is changed to a conforming use.
C. No structure damaged by fire or other causes to the extent of more than 66% of its fair sales value immediately prior to damage shall be repaired or rebuilt excepting to conform to the regulation of this Ordinance.
2. Extension of Non-conforming Use:
A. A non-conforming use shall not be extended, but the extension of a lawful use to any portion of a non-conforming structure which existed prior to the enactment of this Ordinance shall not be deemed an extension of such non-conforming use.
3. Discontinuance and Change
A. Whenever a non-conforming use has been discontinued for a period of six (6) months, such use shall not thereafter be reestablished, and any future use shall be in conformity with the provisions of this Ordinance.
The chancellor emphasized the language in the ordinance relating to non-conforming structures, but we place emphasis upon the title of Section 18 designating use and structures separately and the fact that only an extension of non-conforming use is prohibited. Likewise, we do not attach the significance the chancellor did to the provisions relating to discontinuance of a non-conforming use, because the facts, as we see them, do not disclose any such discontinuance of use in this case.
Let it be clearly understood that we do not consider that either the intention of the landlord to use the property for a mobile home park or the development of plans for doing so is sufficient to establish a permissible non-conforming use.
The first 25 spaces were actually levelled and laid out and the road between them constructed and gravelled in 1966. Gravel for driveways, sewer lines and water lines were then provided and connected to the first 12 spaces. Water was provided by the Helena system. Blundell testified that the water and sewer were available to the other 13 lots and that the only things that would have prevented occupancy of these lots by mobile homes were the sewer problem and the absence of an electrical connection. It was useless to provide this until the sewer problem was solved. Grading and levelling of all the first 25 lots by bulldozer was done at the same time. The septic tank was also constructed at this time. It was after all this was done that the State Health Department limited actual use to three or four spaces, because of soil conditions and advised Blundell that he should connect to the city sewer line. After the sewer connection was made in September 1971, the road on which the 25 lots were located was paved with concrete and concrete driveways and patios were poured for the first 12. Lots had not been previously paved because of uncertainty about ultimate location of sewer lines and manholes to effect the connection to the city system.
Blundell said that some fill had been necessary on lots 13 through 25 due to the rugged terrain and to the fact that he had experienced some difficulty with soil washing there, due in part to the fact that they were unoccupied. He said that the weight of house trailers would pack the soil. He also testified that when the connection with the city sewer system was made, the existing sewer line did not have to be moved or repaired except in one spot. He also testified that he had worked continuously to improve the looks of the park by growing grass and planting shrubs. Blundell testified that he had a total investment of $50,000 in the whole five-acre tract and that he had obtained financing for development by borrowing from a bank. He said that the present value of the property represented one-third to one-half of his investment and that the actual money invested amounted to $30,000, about $25,000 of which was for improvements. Of this about $8,000 to $10,000 was spent for concrete after the passage of the ordinance.
The lower lands on the west side had been merely cleaned out and a road used only for ingress and egress placed there in 1966. Nothing further had been done to develop the property at the time of the trial.
In construing the city ordinances and their effect, we must remember that zoning ordinances, being in derogation of the common law, must be strictly construed in favor of the property owner and that, under our constitution, the right of private property is regarded as before and higher than constitutional sanction. See City of Little Rock v. Williams, 206 Ark. 861, 177 S.W. 2d 924; Poole v. State, 244 Ark. 1222, 428 S.W. 2d 628; Art. 2, § 22, Constitution of Arkansas. Attempts to deprive the owner of a preexisting use have been regarded as unconstitutional as a taking of property without compensation or in violation of due process of law. Silver v. Zoning Board of Adjustment, 435 Pa. 99, 255 A. 2d 506; Hoffmann v. Kinealy, 389 S.W. 2d 745 (Mo., 1965); McCaslin v. City of Monterey Park, 163 Cal. App. 2d 339, 329 P. 2d 522 (1958); City of Corpus Christi v. Allen, 152 Tex 137, 254 S.W. 2d 759 (1953); O'Connor v. City of Moscow, 69 Idaho 37, 202 P. 2d 401, 9 ALR 2d 103 (1949). See City of Little Rock v. Sun Building & Development Co., 199 Ark. 333, 134 S.W. 2d 582. See also, Amereihn v. Kotras, 194 Md. 591, 71 A. 2d 865 (1950); People v. Miller, 304 N.Y. 105, 106 N.E. 2d 34 (1952).
When we consider this ordinance, in this light, we prefer what has been referred to as the “substantial use” test for determining whether the use of property is an existing use at the time of adoption of a zoning ordinance to the extent that the use may be continued thereafter.
At the time of the adoption of the zoning ordinance, the street on which spaces 13 to 25 were located had been paved. Water and sewer service were available to them. The problem about sewage disposal which had prevented occupancy of the property had been solved. Although it is true that none of these spaces had ever been occupied by a mobile home, the first 25 spaces, considering their state of development at that time, constituted a use of the property for a mobile home park under this test.
It is widely recognized that a property owner has vested rights in a non-conforming use of his property. An apt articulation of the rule governing the vesting of such rights, as we apply it to the facts of this case, is found in the following language of the Kentucky Court of Appeals in Darlington v. Board of Councilman, 282 Ky. 778, 140 S.W. 2d 392 (1940);
. . . The mere ownership of property which could be utilized for the conduct of a lawful business does not constitute a right to so utilize it (Cayce v. City of Hopkinsville, 217 Ky. 135, 289 S.W. 223) which cannot be terminated by the enactment of a valid zoning ordinance, as such a concept involves an irreconcilable contradiction of terms. It would seem, therefore, that the right to utilize one’s property for the conduct of a lawful business not inimicable to the health, safety, or morals of the community, becomes entitled to constitutional protection against otherwise valid legislative restrictions as to locality, or, in other words, becomes “vested” within the full meaning of that term, when, prior to the enactment of such restrictions, the owner has in good faith substantially entered upon the performance of the series of acts necessary to the accomplishment of the end intended.
The substantial use test requires that the steps taken toward implementation be of a substantial nature or involve substantial investment or substantial obligations on the part of the owner. See cases cited infra.
Particular applications of the constitutional principles governing vested rights in non-conforming uses have been applied in cases involving mobile home or trailer parks. Vested rights entitled to constitutional protection have been held to exist when there has been a substantial establishment and development of land for use as such a park. Kessler v. Smith v. Village of Glenwillow, 104 Ohio App. 213, 142 N.E. 2d 231 (1957) aff’d. sub. nom; Smith v. Village of Glenwillow, 146 N.E. 2d 308 (Ohio 1957). The vested property right has been recognized in such developments where the utilization of the premises is such that they may be known in the neighborhood as being employed for the conduct of that business, and where a trailer court project is partially completed when zoning regulations become effective and evidence as to the extent of the project is clear, the completed project will determine the scope of the non-conforming use. Board of County Commissioners v. Petsch, 172 Neb. 263, 109 N.W. 2d 388 (1961).
We consider the steps taken by Blundell on the first 25 spaces' prior to the passage of the ordinance to have been substantial and to have involved substantial investment to the extent that he is entitled to use them as a mobile home park as a non-conforming use under the ordinance.
We are unable, however, to classify any of the lots other than the first 25 spaces as a part of the mobile home park in actual use sufficiently to vest any right in Blundell to develop it for occupancy by mobile homes or house trailers. There is no evidence to indicate that such a use of the property was not properly categorized as a long-range future plan. Blundell testified that the land was much lower than the first 25 lots, that there was a serious drainage problem to be solved and that,as a contemplated use, spaces would be laid out here as a third phase of development. Blundell referred to the area as the Valley. He proposes to fill the area in solving the drainage problem. The only attempt to make it usable was an unsuccessful effort to establish a nursery, which lasted only through one spring and summer.
The burden of proof is upon a property owner who claims rights by virture of a non-conforming use. County of Saunders v. Moore, 182 Neb. 377, 155 N.W. 2d 317 (1967). A mere contemplated use without active steps beyond preliminary work or planning or substantial investment to effectuate it is not sufficient to invest a property owner with property rights in a non-conforming use, or with a right to extend a non-conforming use. Ohio State Students Trailer Park Cooperative v. Franklin County, 123 N.E. 2d 286 (1953) affd., 123 N.E. 2d 542 (Ohio App., 1953); Lutz v. New Albany City Plan Commission, 230 Ind. 74, 101 N.E. 2d 187 (1951); Board of County Commissioners v. Petsch, 172 Neb. 263, 109 N.W. 2d 388 (1961); New York Trap Rock Corp. v. The Town of Clarkstown, 1 A.D. 2d 890, 149 N.Y.S. 2d 290 (1956) affd., 3 NYS 2d 844, 144 N.E. 2d 725 (1957); Smith v. Juillerat, 161 Ohio St. 424, 119 N.E. 2d 611 (1954). Preliminary contracts or work which is not of a substantial nature is not sufficient to establish a vested right. County of Saunders v. Moore, supra. The mere purchase of property with intention to devote it to a use is not sufficient in spite of preliminary work, such as clearing, grading and excavating, if that work is not of a substantial nature, or if the owner has not incurred substantial obligations relating directly to the use of the property. City of Omaha v. Glissman, 151 Neb. 895, 39 N.W. 2d 828. Appellant has failed to meet his burden of proof to establish á permissible nonconforming use for trailer spaces in Lots 26 through 44. That use would constitute an extension prohibited by the zoning ordinance.
Appellee argues that since appellant waited as long as he did to extend the actual use of spaces 13 through 25, he abandoned and discontinued any non-conforming use for more than six months, and that the placing of mobile homes on these spaces constitutes a prohibited reestablishment of that use under the ordinance. To embrace this theory would be inconsistent with, the underlying theory of our holding on the question of existence of a non-conforming use. Blundell continued with his development of these spaces after the passage of the ordinance. His occupancy, prior to that time, had never exceeded eight units. The mere fact that his development of these spaces extended from September 1971 to January 1974 was not such an abandonment. Neither was the fact that there was apparently no demand for these spaces. To sustain the city’s argument Would require that we hold that in order to constitute use of the property in the sense of the ordinance, the use must be actual in the sense that the spaces must have been physically occupied by mobile homes. Such a construction would be unduly narrow and a strict construction favoring the city. We decline to give it this construction.
The decree is affirmed as to spaces 26 through 44 but reversed as to spaces 1 through 25. The cause is remanded for entry of a decree consistent with this opinion.
Harris, C.J., dissents as to the reversal.
Some of the cases cited supra involve the principle here stated but relate to buildings. There is no sound reason why any distinction, insofar as legal principles are concerned, should be made between non-conforming use of land and non-conforming use of buildings, as the property rights of use and enjoyment are the same and are entitled to the same constitutional protection. Hoffmann v. Kinealy, 389 S.W. 2d 745 (Mo., 1965). Mobile home parks, used car lots, automobile parking lots, lots for open storage of building materials, construction equipment and airplane landing strips are all examples of uses and enjoyment of property which may prove more valuable to the owner when there are no buildings on them than when there are.
In Kessler, the owner had expended substantial sums of money and considerable effort in the purchase and development of an eight-acre tract for trailer park purposes. When he purchased the property and commenced development the area was not subject to any building ordinance or zoning law. He had obtained approval of plans for sewage treatment and had employed a firm of architects to prepare a complete set of plans for construction. He had purchased a well digger and concrete pipe for water supply and sewer facilities and brought in a bulldozer to fill a ditch and grade the land, and purchased concrete blocks for construction of a utility building, a septic tank and filter bed. At the time of the passage of the ordinance, the utility building had been completed and the foundation constructed for the filter bed and the foundation and part of the walls of the septic tank had been built. The plans provided for 200 trailer spaces, but the operation was to start with only 28, which had been laid out and approaches for use completed with a road between 1600 and 1700 feet in length.
In Petsch, 29 trailer spaces had been put to use on a three-acre tract on which 59 spaces had been staked out. Water and sewer mains had been laid. Septic tanks had been installed consistent with use of the entire tract and power and telephone service were available to all 59 spaces. Eight trailers were installed on a north strip, five of which had been connected with power, telephone, water and sewer facilities, one with power and two without any services. In the northwest strip, five trailers had been installed with telephone, power, water and sewer connections. Sewer and water taps had been provided for 29 spaces in these two strips.
In Moore, there was one electric pole on the northeast corner of the property, and a well on a tract on which the owner had planned 110 lots. Preliminary work laying out roads had been done with a grader. There were no trenches, water or sewer pipes or poured concrete, no trailer houses were present and only one had ever been there. No trailer stalls had been completed and no water, electrical, telephone or sewage connections were available. | [
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Conley Byrd, Justice.
Appellant, Barbara C. Johnston, was fined $59.45 in the Municipal Court of the City of Pine Bluff for violating a municipal speeding ordinance containing a maximum possible fine of $500 and six months in jail. On appeal to the circuit court her motion for a jury trial was overruled and she was fined $10 and costs for a total of $25.40. Her only contention for reversal is that the trial court erred in denying her a jury trial. The City of Pine Bluff seeks to sustain the denial of a jury trial on the theory that it was only a petty offense and for petty offenses the Constitution does not guarantee the right to trial by jury.
Our statutes after providing the procedure for perfecting an appeal from the municipal court to the circuit court, see Ark. Stat. Ann. § 26-1307 (Repl. 1962), Ark. Stat. Ann. §44-502 (Repl. 1964) and Ark. Stat. Ann. § 44-505 (Repl. 1964), provide for a trial de novo on appeal. See Ark. Stat. Ann. § 44-509 (Repl. 1964) and Ark. Stat. Ann. § 26-1308 (Repl. 1962). No distinction is made between petty offenses and other misdemeanors. Such statutes have ordinarily been construed as meaning that the case stands for trial in the circuit court on the same footing as though the case had originated in the circuit court. See State ex rel Suchta v. District Court of Sheridan County, 74 Wyo. 48, 283 P. 2d 1023 (1955). With respect to criminal trials in the circuit court, Ark. Stat. Ann. § 43-2105 (Repl. 1964), provides that: “Issues of fact shall be tried by a jury.” Ark. Stat. Ann. § 44-115 (Repl. 1964), with respect to a violation of a city ordinance provides:
“All trials in the police court, for a violation of the bylaws or ordinances of such city, shall be before the police judge without the intervention of a jury, but the defendant, upon appeal, shall have the right to a jury trial in the circuit court, ...”
It follows that the trial court erred in denying a jury trial.
Since the public policy of this State, as set forth in the foregoing statute disposes of the issues here, we need not reach the constitutional issues raised by the City of Pine Bluff nor its assertion that the offense involved is a petty offense. The City’s suggestion that appellant waived her right to a jury trial by not seeking an earlier ruling on her motion is without merit. See Ark. Stat. Ann. § 43-2108 (Repl. 1964).
Reversed and remanded. | [
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Conley Byrd, Justice.
In a suit brought by Betty MilliganWard under the vandalism provision of an insurance policy issued by Farm Bureau Insurance Company, Inc., the jury found the issues in favor of Farm Bureau. The trial court granted a new trial on the basis that there was no evidence to justify an instruction on whether Betty Milligan Ward had violated the terms of the policy in neglecting to use reasonable means to save and preserve the property at and after the loss. The Farm Bureau appeals from that ruling. Mrs. Ward for her cross-appeal contends that the trial court erred in not directing a verdict in her favor on the liability of the Farm Bureau.
The record shows that in early 1973, Betty Milligan purchased a house for herself and her three children. The Farm Bureau issued its homeowners policy to Betty Milligan effective from 6/5/73 to 6/5/74. Some three months after the purchase of the house, Betty Milligan married Tommy Ward. Approximately two weeks before the loss involved herein. Tommy Ward left a note saying that he was leaving Betty Milligan Ward and directed her to pack his clothes and put them in his car which was parked outside. Tommy Ward, a long distance truck driver, came to her house with his nephew on the evening preceding March 16, 1974, at approximately 7:00 p.m. Betty Milligan Ward, although in the neighborhood, was not at home at that time. When the children saw Tommy Ward pull the telephone out of the wall, they ran and reported the incident to their mother. After Betty Milligan Ward arrived at her house, Tommy Ward left without speaking. It was then decided that her sister and brother-in-law would spend the night with her. Tommy Ward returned about 2:00 a.m. and when Betty Milligan Ward unlocked the door he slapped her three or four times. Tommy Ward then doubled up his fist to hit her brother-in-law but decided against it and left for the second time. At this time, Betty Milligan Ward and her children, together with the sister and brother-in-law, locked the house and went to the sister’s home to spend the remainder of the night. Upon her return the next day Betty Milligan Ward found that Tommy Ward had again returned and broken into her house. There was extensive damage to both the house and 'the furniture therein.
Jerry Mote, an adjuster for Farm Bureau, testified that the basis of his denial of the vandalism claim was that Mrs. Ward told him that her husband had caused the damage.
The only policy provision involving vandalism or any exclusion or exception thereunder, is under “Perils Insured Against” under Section 1 of the policy. In so far as applicable it provides:
“This policy insures under Section 1 against direct loss to the property covered (and additional living expense resulting from such loss) by the following perils as defined and limited herein:
10. VANDALISM AND MALICIOUS MISCHIEF, meaning only the wilful and malicious damage to or destruction of the property covered, but excluding as respects this peril loss if the described dwelling had been vacant beyond a period of 30 consecutive days immediately preceeding the loss. A building in course of construction shall not be deemed vacant.”
The Farm Bureau in contending that there was evidence warranting an instruction on whether Betty Milligan Ward had neglected “to use reasonable means to save and preserve the property at and after the loss” argues in its brief as follows:
“Therefore, the issue on appeal is whether there was sufficient evidence to sustain the giving of the instruction. What evidence was there of neglect of the insured to use reasonable means to save and protect the property at and after a loss?
(1) She did not immediately repair the windows and doors.
(2) The repairs described in the estimate have not been made at the time of the trial.
(3) Mrs. Ward unlocked the doors at 2:00 A.M. Saturday morning and let Mr. Ward in the house even though at 7:00 P.M. the previous evening he was violent enough to pull out the phones.
(4) She left the home after the fight wherein Mr. Ward struck her four (4) times. The home was, therefore, unprotected at the time the damage was done by Mr. Ward.”
The record at page 76 shows that, when Mrs. Ward discovered the damages, she first notified the police and then Farm Bureau. The property was inspected by Farm Bureau’s agents on the same day that the damage was discovered. The only evidence as to any delay in repairs is Mrs. Ward’s testimony that she had to wait until she got the money to replace the broken windows and doors. We do not believe that an insurer who refuses payment under its policy is in a position to argue that an insured without the financial means to make the necessary repairs has neglected to use all reasonable means to save and preserve the property. Furthermore, the policy provision upon which Farm Bureau relies provides:
“This Company shall not be liable for loss by fire or other perils insured against in this policy caused, directly or indirectly, by: ... (i) neglect of the insured to use all reasonable means to save and preserve the property at and after a loss, or when the property is endangered by fire in neighboring premises; ...”
There is certainly no showing here that Mrs. Ward, in locking the premises when she left, did anything other than any other prudeni person would have done under the same or similar circumstances. Since no loss occurred when Mrs. Ward unlocked the door at 2:00 a.m., we can find no logical relevance to Farm Bureau’s contention that this showed a neglect on the part of Mrs. Ward to save and protect the property. Consequently, we agree with the trial court that there was no evidence to instruct the jury on the issue of failure to save and protect the property at and after the loss.
In answer to Mrs. Ward’s contention that she was entitled to a directed verdict on Farm Bureau’s liability for the damages sustained, the Farm Bureau only contends that there was a factual issue to go to the jury as to what was meant by the words “vandalism and malicious mischief. ” We find no merit in this suggestion. As can be seen from the language of the policy, supra, the terms “vandalism and malicious mischief” are defined as “meaning only the wilful and malicious damage to or destruction of the property covered. ” The only logical conclusion that can be drawn from this record is that Tommy Ward, after a quarrel with his estranged wife, returned to the house after she left and wilfully and maliciously broke down the locked door to her house, broke windows and otherwise damaged the personal property therein (including but not limited to breaking the legs from three dining room chairs and completely destroying a color television). Therefore, it follows that the trial court erred in failing to direct a verdict in Mrs. Ward’s favor on the issue of liability under the policy.
Reversed and remanded for new trial.
George Rose Smith and Fogleman, JJ., concur. | [
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Carleton Harris, Chief Justice.
Appellant, Gary Don Beasley, was charged with the crime of rape, and on trial, was convicted by a jury, and his punishment set at three years confinement in the Department of Correction. From the judgment so entered, appellant brings this appeal. For reversal, three points are asserted, which we proceed to discuss.
It is first contended that the court erred in refusing to consider appellant’s motion to quash the petit jury panel.
On May 23, 1974, counsel for Beasley filed a motion to quash the jury panel, on the basis that Ark. Stat. Ann. § 39-209 (Supp. 1973) had not been complied with. That section, dealing with the procedure in drawing for petit jurors, provides inter alia:
“As the names are drawn they shall be recorded in the same order by the circuit clerk in a book to be provided for that purpose. If the name of any person known to have died, or to be disqualified under Section 2 (§39-102) of this Act, shall be drawn, said name shall be put aside and not used and a notation of the discarding of the name and the reason therefor shall be made in the jury book.”
The motion sets out that, contrary to the statute, the circuit clerk recorded the names on a yellow legal pad, such names never being recorded in a book provided for that purpose as required by the aforementioned statute. A copy of the pad was offered in evidence. Apparently, this motion was not presented to the trial court until the day of the trial (May 28), at which time the record reflects the following:
“(PRIOR TO VOIR DIRE EXAMINATION OF JURORS):
MR. HOLLAND: We have a motion to present, to quash the jury panel.
COURT: Mr. Holland, this is Case 9855, which was lodged in this Court the 16th day of August, 1973, and on the 10th day of December, 1973, you appeared in this Court with your client and waived formal arraignment and entered a plea of Not Guilty. Subsequent to that, on the 12th of December, 1973, you petitioned the Court for a continuance, and the Court granted that continuance to you at that time.
MR. HOLLAND: When?
COURT: On the 12th day of December, 1973.
MR. HOLLAND: A motion for continuance?
COURT: You made an oral motion for continuance before this Court which the Court granted on your motion.
On the 20th day of May, 1974, this Court appeared here for the purpose of arraignment, for the purpose of hearing motions and other matters preliminary to trial, and the Court was advised at that time this matter was'ready for trial and would be tried at this particular term of Court.
This morning the Court is presented with a motion to quash the petit jury panel, and the Court finds, you being familiar with the fact the Court does pass upon matters of this nature on the first day of the Court, defense has not timely filed this motion, and the Court is going to deny it.
What says the State?
MR. PEARSON: State is ready.
COURT: And the defendant?
MR. HOLLAND: Defendant is ready.”
In support of his contention that error was committed, appellant cites Ware v. State. 146 Ark. 321, 225 S.W. 626, where this court, citing an earlier case, said that a challenge to the panel of the petit jury could be made and filed on the day the case was called for trial. Ware was decided in 1920. Appellant also cites Shelton v. State. 254 Ark. 815, 496 S.W. 2d 419, where we cited an earlier case, stating:
“In Horne v. State, 253 Ark. 1096, 490 S.W. 2d 806 (1973), we held that, due to the many successful attacks that were being made upon our jury selections in post conviction proceedings prior to Acts 1969, No. 568, we could not construe the Act as directory - i.e., the procedure therein outlined is mandatory -'when . the challenge is made at the proper time." [Our emphasis].
Here, it is well to state that Act 138 of 1911 (Ark. Stat. Ann. § 22-322 - 322.8 [Repl. 1962]) provided an additional circuit judge for the second judicial circuit (of which Greene County is a part). Section 2 (§ 22-322.1) sets out that the circuit courts in the counties of said circuit shall be divided into two divisions, to be known as the first and second divisions. Section 4 (§ 22-322.3) provided that the clerk shall assign all civil cases to the first division, and all criminal cases to the second division, and also provided that by written order of the judges the business might be divided in any manner that said judges deemed proper and expedient. In 1953, the General Assembly passed Act 102, Section 1 of that Act (Ark. Stat. Ann. § 22-319.1 [Repl. 1962]) providing:
“Whereas the trial dockets of the first and second divisions of the second judicial circuit are so burdened as to make it impossible to dispose of current business in the regular terms thereof as provided by law, the judges of said division are hereby directed to relieve said conditions by means of pre-trial conferences, adjourned days and adjourned terms when same can be held without conflicting with the holding of the regularly scheduled terms.”
The act made no distinction in the first division (which handled civil cases) and the second division (which handled criminal cases), i.e., the provision requiring the judges of those courts to hold pretrial conferences, applying to both civil and criminal cases.
In 1965, the General Assembly passed Act 505 (Ark. Stat. Ann. § 22-322.9 - 322.13 [Supp. 1973]). § 22-322.9 provides that there shall be three judges of the circuit court for the second judicial circuit. § 22-322.10 provides that the circuit courts in the counties and districts thereof shall be divided into three divisions, known as the first, second, and third divisions. § 22-322.11 sets out that the three judges shall hold court in the respective divisions at times and places provided in the act; that they shall be nominated and elected to a specific numbered division of the court “but this shall not be deemed an enlargement nor a diminution of their powers as Circuit Judges to try and dispose of any litigation or matter which falls within the jurisdiction of the Circuit Court,” § 22-322.12 provides:
“The Circuit Court Clerks of each of the courts in the several counties shall keep and maintain two (2) separate dockets, one (1) for criminal cases and one (1) for civil cases, and each case filed shall be entered in the proper docket. The Judge of the First Division shall preside over cases assigned to the Criminal Docket and the Judges of the Second and Third Divisions shall preside over cases assigned to the Civil Docket. During each term of either division of the Circuit Court, the presiding Judge, by appropriate orders, may assign in the first instance, or reassign any case, Criminal or Civil, from one docket to the other as may be found best for the dispatch of business. The Judges of the three (3) Divisions will alternate in the holding of courts in the three (3) divisions so that each judge will hold approximately one-third (1/3) of the first division (criminal) terms in each county of the district, and two-thirds (2/3) of the second and third division (civil) terms in each, county of the district.”
This section makes the judge of the first division the presiding judge over the criminal docket (contrary to Act 138 of 1911 which provided that criminal cases should be tried in the second division), but that fact is not pertinent in reaching conclusions in this case, for again there is no distinction between the three divisions, as far as the holding of pre-trial conferences is concerned.
As has already been pointed out from the record, the trial court denied the motion to quash the panel because of the fact that this motion was not presented at the pre-trial conference held on May 20. The statute providing for pretrial conferences was.passed 33 years after Ware v. State, supra, and is, except for extraordinary reasons, controlling. There is no showing why appellant could not have presented this motion as well at the pre-trial conference, held on May 20, as to have waited until May 23 to file it and present it on the day of trial. The purpose of pre-trial hearings, of course, is to determine all issues in advance, and dispose of all preliminary matters so that the case will be ready for trial at the time it is set, and can be tried at that time. We agree with the trial court that appellant’s motion was not timely filed.
It is next asserted that the court erred in giving its Instruction No.9. Appellant says that “The instruction given by the court gives undue emphasis to the jury to the appellant’s witnesses and causes the jury to scrutinize their testimony more severely than it scrutinizes the testimony of the prosecution witnesses.”
The young girl, allegedly raped, testified that the act occurred on the night of July 1, shortly after 10:00 P.M., when she got off from work, and she positively testified that Beasley was the person who raped her; further, that he was operating an “orangy-red” motorcycle with a white band on it. Appellant presented two witnesses who testified that they were coon hunting with appellant on July 1 from 8:00 P.M. until midnight or 1:0Q A.M. Another witness for appellant testified that Beasley’s motorcycle was in his dad’s shop for repairs on July 1. The whole question, of course, as far as the alibi is concerned, relates to the whereabouts of Beasley at the time that the alleged rape occurred. Appellant’s argument is without merit for the almost identical instruction here under attack was approved in the 1894 case of Ware v. State, 59 Ark. 379, and approval has been reiterated at various times in subsequent years. See Wright v. State, 177 Ark. 1039, 9 S.W. 2d 233. Appellant’s contention is without merit.
It is contended that the court erred in refusing appellant’s requested Instruction No. 2, a cautionary instruction relative to the charge of rape. While this instruction could have been given, the refusal is not grounds for reversal. We have held that a trial court’s refusal to give a cautionary instruction is not reversible error, this being discretionary, unless an abuse of discretion is shown. Bradshaw v. State, 211 Ark. 189, 199 S.W. 2d 747. No such abuse here appears. It might be added that the court’s other instructions thoroughly explained to the jury the elements constituting the crime of rape.
Finding no reversible error, the judgment is affirmed.
It is so ordered.
Franklin v. State, 85 Ark. 534, 109 S.W. 298.
“The defendant in this case says that he was not at the place where the first degree rape took place at the time the same occurred, but was at another place, and that, therefore, he was not connected with or implicated in such crime.
“The burden of showing an alibi is on the defendant, but if on the whole case the-ttstimony raises a reasonable doubt that the defendant was present when the crime was committed, he should be acquitted. But the jury should scrutinize the testimony of witnesses to see if some of them may not be mistaken as to dates and time when they saw the defendant, and it is proper,for the jury to consider the lapse of time since such occurrence happened, and whether witnesses are likely, after such lapse of time, to.be accurate as to the precise time or hour that they saw the defendant on the night that the crime occurred. In other words, in arriving at your conclusion on this point, the jury should consider whether it may not be true that the defendant was present at the time of the alleged First Degree Rape, and that some Pf the witnesses are honestly mistaken as to the exact time they saw the defendant on that night.”
“You are instructed that the crime of rape, of which Gary Don Beasley is charged, is a serious one, and such a charge is easily made and hard to contradict or disprove; that it is a character of crime that tends to create a prejudice against the person charged; and, for these reasons, it is your duty to weigh the testimony carefully, and then determine the truth with deliberative judgment, uninfluenced by the nature of the charge.” | [
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Frank Holt, Justice.
Appellant was found guilty by a jury of the delivery of heroin in violation of Ark. Stat. Ann. § 82-2617 (Supp. 1973) and his punishment was assessed at seven years in the State Department of Correction. Appellant first contends for reversal that the evidence is insufficient to sustain the verdict. We cannot agree.
Appellant recognizes that, in testing the sufficiency of the evidence on appeal, we consider only that evidence and all reasonable inferences deducible therefrom in the light most favorable to the appellee and if any substantial evidence exists, we must affirm. Miller v. State, 253 Ark. 1060, 490 S.W. 2d 445 (1973). Here, it appears that the thrust of appellant’s argument is that the statute requires something of value be received by appellant for the delivery of a controlled substance and the state’s proof is deficient in that respect. Appellant asserts the sale was complete before he received anything of value. The state adduced evidence that a narcotics officer had negotiated with appellant about selling him some heroin. The appellant requested $100 for a gram. The officer refused to give it to him since he did not know him well enough. However, as requested by appellant, the officer gave the money to appellant’s female confederate when she arrived. She and the appellant then left together and returned approximately twenty minutes later. The appellant’s accomplice delivered the heroin to the officer at which time she and the appellant identified the substance to the officer as being heroin. The appellant then asked the officer to give him “a portion of the heroin for getting it for him.” The officer refused. However, he gave him $10. The evidence is amply sufficient that appellant was an active participant in the transaction. Miller v. State, supra.
Neither can we agree with appellant that the testimony of the state’s expert witness, a chemist employed by the State Health Department, should have been excluded. It appears that the objection to his testimony was based upon the asserted right of the appellant to have the substance (heroin) examined and analyzed by an independent chemist or by someone other than an employee of an agency of “the State who works hand in hand with the law enforcement agencies.” We have rejected a similar argument in the recent case of Hale v. State, 246 Ark. 989, 440 S.W.2d 550 (1969). See also Upton v. State, 254 Ark. 664, 497 S.W.2d 696 (1973); and Grissom v. State, 254 Ark. 81, 491 S.W.2d 595 (1973). Here, suffice it to say that the record does not reflect that appellant was ever refused a request to have the substance (heroin) examined by an expert witness of his own choosing.
Affirmed. | [
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W.H.“DUB” ARNOLD, Chief Justice.
The appellant, John W.Kail, was charged with capital murder under Ark. Code Ann. § 5-10-101 (Repl. 1997) for knowingly and with premeditated and deliberated purpose causing the death of a Larry Chappell on October 2, 1997. He was accused of purchasing an SKS 7.62 rifle on October 2, 1997, and, with deliberation, purposefully using said rifle to shoot and kill Larry Chappell, who was appellant’s father-in-law. Appellant was convicted by a jury of murder in the first degree and sentenced to life in prison.
Appellant asserts the following four points on appeal;
The trial court erred in granting the State’s request to prohibit evidence presented by appellant regarding circumstances arising to a level of extreme emotional disturbance;
The trial court erred in denying appellant’s request that the court recuse based upon improper ex parte communications with the family of the decedent;
The trial court erred in refusing to inquire as to the nature of the contact between witnesses and jurors prior to the conclusion of the case;
The trial court erred in denying appellant’s motion for a new trial.
We find no error ón the part of the trial court and hereby affirm the conviction and life sentence of appellant.
I. Prohibition of Evidence
The evidence adduced at trial revealed that on October 2, 1997, at approximately ten o’clock in the morning, appellant went to the home of a neighbor, William Ishmael, and asked Mr. Ishmael to drive him to a pawn shop because he wanted to buy an SKS rifle. Mr. Ishmael drove appellant to the pawn shop, where appellant purchased the weapon. The two then proceeded to the local WalMart store and purchased shells. Then, after purchasing some beer, the two drove out to an area where they could fire their guns, according to Mr. Ishmael.
After shooting for a while, appellant asked Mr. Ishmael to drop him off near a small shed off Highway 284. This drop-off point was less than one-half mile from the victim’s residence. Mr. Ishmael testified that appellant told him a friend would be picking him up there to go hunting, although it was not gun season, according to Mr. Ishmael, it was bow season. Mr. Ishmael testified that it was probably around noon when he dropped appellant off near the shed.
Valerie Chappell, wife of the deceased, testified that sometime between eight and nine o’clock, on the evening of October 2, 1997, gunshots began being fired into her residence near the patio. She testified that her daughter, Kim Chappell Kail, ex-wife of the appellant, was staying at her home and had already gone to bed when the shooting commenced. Mrs. Chappell stated that her husband was wounded by one of the shots and that she saw the appellant standing inside the patio doors with the rifle in his hand. Mr. Chappell later died as a result of the gunshot wound.
At trial, appellant attempted to offer evidence regarding alleged marital discord between appellant and the deceased’s daughter, Kim Chappell Kail, in an attempt to prove that appellant was suffering from an “extreme emotional disturbance” for which there is a reasonable excuse, as set forth in Ark. Code Ann. § 5-10-104 (Repl. 1997), in order to justify a lesser included instruction for manslaughter. The trial court precluded appellant from offering said evidence. Further, the court precluded the appellant from offering any evidence from medical experts or psychological experts to establish an extreme emotional disturbance.
The trial court upheld the position taken by the State that pursuant to the cases of Spann v. State, 328 Ark. 509, 944 S.W.2d 537 (1997) and Rainey v. State, 310 Ark. 419, 837 S.W.2d 453 (1992), a criminal defendant is not entitled to present any evidence whatsoever with respect to a claim of extreme emotional disturbance for which there is a reasonable excuse, in the absence of some physical provocation in close proximity to the homicide. Appellant contends that this ruling is in error when applied to the case at bar and that, as a result, he was denied a fair trial. Appellant contends that the court’s refusal to give the lesser included instruction of manslaughter amounted to error because he contends it is reversible error to refuse to give an instruction on a lesser included offense when the instruction is supported by even the slightest evidence. See Spann, supra.
We have held that a trial court is accorded wide discretion in evidentiary rulings and will not be reversed on such rulings absent a manifest abuse of discretion. See Skiver v. State, 336 Ark. 86, 983 S.W.2d 931 (1999). Flere, the trial court found the evidence sought to be admitted by appellant to be remote, due to a lack of provocation; further, the court found the evidence to be prejudicial, confusing, and a waste of time under Ark. R. Evid. 403. The court explicitly stated, when appellant sought to present evidence of his marital strife and divorce from Kim Chappell Kail, the victim’s daughter, that it did not want to have a divorce trial within the context of the appellant’s criminal trial.
Regardless of the trial court’s reasons for determining that appellant’s'proffered evidence should be excluded, appellant has failed to demonstrate what prejudice he suffered by said exclusion by fading to establish how the inclusion of such evidence would have provided a rational basis supporting a manslaughter instruction pursuant to Ark. Code Ann. § 5-10-104(A)(l). Appellant is correct in stating that an instruction on a lesser included offense should be given if it is supported by the slightest evidence. See Spann, supra. However, we have held that we will affirm a trial court’s decision to exclude a lesser included offense instruction if there is no rational basis for giving the instruction. Id. We held in Spann that it is not error to refuse to give an instruction on manslaughter where there is no evidence of extreme emotional disturbance. Id. at 513, 944 S.W.2d at 539. We further held that:
...[P]assion springing from anger, resentment, fear, or terror will not alone reduce a homicide from murder to manslaughter; there must be a provocation inducing the passion such as physical fighting, a threat, or a brandished weapon which makes the passion irresistible.
Spann, 328 Ark. at 514-15, 944 S.W.2d at 540, quoting from Rainey v. State, 310 Ark. at 423, 837 S.W.2d at 455, quoting Wooton v. State, 232 Ark. 300, 337 S.W.2d 651 (1960).
Despite feelings of individuals who are suffering marital discord, the frustration, anger, and resentment that can result fails to constitute, on its own, a rational basis for giving an instruction on voluntary manslaughter. Whether expressed in terms of “heat of passion,” (as it was formerly referred) or scientifically defined as “extreme emotional disturbance,” see Rainey, 310 Ark. at 424, 831 S.W.2d at 456, the instruction requested by the appellant requires a basis in fact indicating that the appellant killed Larry Chappell in the moment following “provocation in the form of physical fighting, a threat, or a brandished weapon,” as we stated in Spann.
Clearly, no evidence of provocation has been demonstrated in this case. Appellant argues that he had witnesses who would have testified that Larry Chappell had threatened to kill him in the past. However, the trial court ruled that this evidence would be hearsay and that it was unlikely such testimony would be otherwise admissible. Therefore, even in the face of the appellant’s proffered hearsay evidence of prior verbal threats allegedly made by Larry Chappell, remote in time from the homicide, no evidence of provocation existed in this case.
The evidence adduced at trial is clear that appellant armed himself, invaded the victim’s home, and shot him dead. It is true that his divorce from Mr. Chappell’s daughter may have aroused unbalancing passion within the appellant, but absent any provocation, no rational basis existed upon which the trial court could instruct the jury on manslaughter due to extreme emotional disturbance.
As such, we hold that the trial court did not abuse its discretion in prohibiting such evidence.
II. Recusal
This court has held that the decision to recuse is within the trial court’s discretion, and that decision will not be reversed absent abuse. See Gates v. State, 338 Ark. 530, 2 S.W.3d 40 (1999). Abuse must be proven by the party seeking to disqualify by showing bias or prejudice on the part of the trial court, and there exists a presumption of impartiality. Id.
Neither a review of the record in this case nor any demonstration by appellant in his brief reveals prejudice on the part of the trial court against the appellant. The trial court granted the appellant’s pretrial motion to view the crime scene, that being the victim’s home. On the day of trial, appellant filed a motion to recuse with the trial court. Appellant recounted that when he and his counsel viewed the crime scene, difficulties arose with the victim’s wife who stated that she was going to “call the judge” and that she “had talked to him before and he said I can call him back if I need anything else.” Appellant alleged in his motion to recuse and, likewise, argues on appeal that if communication had taken place between the court and the victim’s wife, the court should have disqualified itself from the case.
The trial court denied the motion to recuse. In so doing, the judge stated that during the time of the appellant’s visit to the crime scene, and while he was presiding over another trial in a different city, he received a call from his case coordinator, informing him that there was trouble at the crime scene because of the appellant’s visit. The case coordinator had spoken to the victim’s wife, and the wife had stated that she did not want the appellant in her home. The court noted that it was sensitive to the complaint because of the order allowing the appellant to view the crime scene. The court then stated:
I felt I should try to resolve the matter if at all possible, because one, we knew the trial was coming this day and I didn’t know the extent of it, but it appeared to be an emergency situation. And I had my case coordinator to make certain that Mrs. Kail [he] understood that I ordered the permission to view the scene; did not want to intrude upon her, but I had done so. And, under the circumstances, there was nothing else I could ask her to do but to cooperate. So, I hadn’t heard anything from it until this morning.
The court noted that Canon 3(B)(7) (1999) of the Arkansas Code of Judicial Conduct supported its decision to communicate between the case coordinator and the victim’s wife. The court further declared that the communication in no way gave any party a tactical advantage in the case; that the court was going to give each party a fair trial; and, that the court was not going to make any distinction or take any side in the case.
Based upon the record made by the trial judge regarding the contact between the court and the victim’s wife, we do not believe the trial court abused its discretion in refusing to recuse. As the trial court noted, Arkansas Code of Judicial Conduct Canon 3(B)(7)(a) allows for communication outside of the presence of the parties when the circumstances require such contact “for scheduling, administrative purposes or emergencies that do not deal with substantive matters or issues on the merits ... provided: (i) the judge reasonably believes that no party will gain a procedural or tactical advantage as a result ... and (ii) the judge makes provision promptly to notify all other parties of the substance of the ex parte communication and allows an opportunity to respond.”
While it is true that the trial court did not promptly notify the parties of the communication, the court did explain the substance of the communication and allowed the parties to respond when it considered the appellant’s motion. The court was quite explicit that it acknowledged the communication only to facilitate the court’s order allowing the appellant to view the crime scene. As such, the trial court was clearly not biased or prejudiced against the appellant. Indeed, the court was assuring that the appellant received the relief requested pursuant to the granted motion to view the crime scene.
The appellant has failed to objectively demonstrate any point of prejudice on the part of the court which would call for this court to reverse the trial court’s refusal to recuse. See Simmons v. State, 314 Ark. 310, 862 S.W.2d 245 (1993) (citing Matthews v. Rodgers, 279 Ark. 328, 651 S.W.2d 453 (1983)). While appellant alleges that prejudice lies in rulings made by the court later in his trial (which he challenges in other points in this appeal), we have clearly held that the mere fact that some rulings are adverse to the appellant is not enough to demonstrate bias. See Gates, 338 Ark. at 545, 2 S.W.3d at 48.
We hold that the trial court did not abuse its discretion in refusing to recuse in the instant case.
III. Improper Contact with Jurors
After the appellant had rested his case at trial, and just before the trial court instructed the jury, the appellant asked the court to inquire of the jury as to whether any of its members had conversed with a witness. Appellant alleged that four jurors had been seen talking to a State’s witness during the preceding break, although the judge had cautioned them at the beginning of the trial not to even “pass the time of day.”
The prosecutor informed the court that the area in which the jurors and witness had been seen was the designated “smoking area” of the building, and that any persons — attorney, witnesses, or jurors — who wanted to smoke had to use that area. Defense counsel asked the judge to inquire as to what conversations, if any, had occurred between the jurors and the witnesses, in order to determine whether a mistrial would be necessary. The court refused to question the jurors or the witness. Appellant claims that he was, thereby, precluded from making any further record regarding the alleged conversations between these individuals.
We have held that the appellant bears the burden of demonstrating that a reasonable possibility of prejudice resulted from the alleged improper contact. See Griffin v. State, 322 Ark. 206, 909 S.W.2d 625 (1995). Here, the appellant has failed to demonstrate what prejudice, if any, he has suffered as a result of the court’s denial of his request to inquire regarding the alleged inappropriate contact between jurors and a witness. Appellant could have, at the least, proffered the testimony of the person who allegedly saw the jurors and witness interacting; he failed to make such a proffer. Further, appellant produced no affidavits, either with his motion for new trial or with this appeal, which would demonstrate possible error.
We have held that reversible error cannot lie upon allegation alone. See Jefferson v. State, 328 Ark. 23, 941 S.W.2d 404 (1997) (noting that Berna v. State, 282 Ark. 563, 670 S.W.2d 434 (1984), established the rule that simply because error is committed, it is not presumed prejudicial). Furthermore, a mistrial is an extreme remedy that should only be granted when justice cannot be served by continuing the trial; and, the appellate court will not reverse a trial court’s decision to deny a motion for mistrial except for an abuse of discretion or manifest prejudice to the complaining party. See Griffin v. State, supra. Moreover, the judge is accorded broad discretion in this regard, and while we note that a simple inquiry by the judge of the jurors, or the witness, or both, would have been the preferred method of addressing the situation, we cannot say that the trial judge abused his discretion by refusing to make an inquiry when we have not been presented with any demonstration of prejudice to the appellant as a result of the trial court’s ruling. As such, we hold that the trial court did not abuse its discretion in this regard.
IV Motion for New Trial
The appellant filed a motion for new trial on the grounds that the trial court refused to inquire, or allow his counsel to inquire, as to whether any jurors had improper contact with a witness, and that the court failed to allow him the opportunity to make a record to support his recusal motion. The court never ruled on the appellant’s motion for new trial; thus, it was deemed denied thirty days after it was filed, pursuant to Ark. R. App. P. — Crim. 2(a)(3) (1999).
The appellant’s motion for new trial presented grounds which, in effect, mirror his arguments in points II and III, above; as such, because we have found no error on the part of the trial court with regard to points II and III above, we hold that the appellant’s argument regarding the denial of his motion for new trial is moot, and need not be addressed.
V. Rule 4-3(h) Compliance
In accordance with Ark. Sup. Ct. R. 4-3(h) (1998), the record has been reviewed for adverse rulings objected to by the appellant but not argued on appeal, and no reversible errors were found. We affirm appellant’s judgment of conviction and sentence imposed.
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Carleton Harris, Chief Justice.
This is an action for declaratory judgment originally brought by appellee, Jack Arney, against his insurer, Canal Insurance Company. Arney has been in the commercial trucking business for a number of years. On May 21, 1971, appellant issued its policy of liability insurance to appellee, granting coverage on certain tractors and trailers used in the business by Arney. On September 7, 1971, appellee, while operating one of the tractors which was towing a trailer not listed in the coverage, collided with a passenger vehicle occupied and operated by appellees Bessie G. White and Blanch Pace. White and Pace instituted suit in the Washington County Circuit Court against Arney, seeking 87,550 damages. Arney made demand upon appellant to conduct his defense under the terms of his policy, but appellant declined to do so, asserting that the policy did not afford coverage on the trailer that was being towed and the company had no liability. Following the filing of the complaint, wherein the agent for appellant was also named a defendant, and the filing of an answer, appellant filed a third party complaint, styled “Counter-claim and Cross-complaint for Declaratory Judgment,” alleging that the company which owned the trailer involved in the wreck had primary coverage and the duty to defend, and appellant also asked that rights between appellant and White and Pace be adjudicated. On tfial, the circuit court found that the in surance policy wafe ambiguous and unclear as to its definition and meaning of the word “trailer,” and that appellant was under a legal duty and obligation to defend the pending litigation which White and Pace instituted against Arney. Arney was awarded an attorney’s fee of $2,500. From the judgment so entered comes this appeal.
The appeal in this case will have to be dismissed because of non-compliance with Supreme Court Rule 26A dealing with extension of time for appeal, and non-compliance with Ark. Stat. Ann. § 27-2127.1 (Supp. 1973).
Rule 26A reads as follows:
“Effective August 1, 1973, in the absence of a showing of unavoidable casualty all appellate records must be filed with the Clerk in compliance with Act 206 of 1971 (Ark. Stat. Ann. § 27-2127.1 [Supp. 1971]), which provides that a trial court may extend the time allowed for the docketing of an appeal if the court (a) finds that the extension is related to the inclusion in the record of evidence stenographically reported and (b) enters the order of extension before the expiration of the period for filing and docketing as originally prescribed or extended by a previous order. Counsel seeking such an extension shall give to opposing counsel notice of the application for an extension of time.”
Section 27-2127.1 reads as follows:
“The record on appeal shall be filed with the appellate court and the appeal there docketed within 90 days from the date of filing the notice of appeal; except that, the trial court may prescribe the time for filing and docketing, which in no event shall be less than 90 days from the date of filing the first notice of appeal. In all cases where there has been designated for inclusion any evidence or proceeding at the trial or hearing which was stenographically reported, the trial court, after finding that a reporter’s transcript of such evidence or proceeding has been ordered by the appellant, in its discretion and with or without motion or notice, may ex tend the time for filing the record on appeal and docketing the appeal, if its order for extension is made before the expiration of the period for filing and docketing as originally prescribed or extended by a previous order; but the trial court shall not extend the time to a date more than seven (7) months from the date of the entry of the judgment or decree.”
The trial court entered judgment in the instant case on November 12, 1974, and appellant filed its notice of appeal on December 2, 1974. The 90th day following the filing of the notice of appeal was March 2, 1975, which was on a Sunday, which fact would have permitted the record to be filed the next day. The transcript reflects the following order filed by the trial court on March 31, 1975:
“On this 28th day of February, 1975, due to the excessive number of appeals, inability of Court Reporter to prepare transcripts in the required time and at the request of Plaintiff and Defendant, an additional ninety (90) days is granted from the 2nd of March, 1975, within which to prepare and file a transcript in the above styled cause.
Nunc pro tunc.”
Section 27-2127.1 (Act 206 of 1971) amended Section 20 of Act 555 of 1953 and the provisions of this statute were before us in Gallman v. Carnes, 254 Ark. 155, 492 S.W. 2d 255. In Gallman, supra, Gallman had obtained an extension of time to file a record, even though no evidence had been reported stenographically, but the record was not filed until after the original time had expired. Appellees sought a dismissal of the appeal, since appellant had not shown that an extension was needed because of stenographically reported evidence. We refused, however, to dismiss the appeal, stating:
“In similar situations, when new procedural statutes have changed familiar steps involved in the appellate process we have stretched our authority to its fullest extent to avoid hardships to lawyers and to litigants.”
We then adopted Rule 26A which appeared in the Appendix to the Opinion. This rule became effective August 1, 1973. Two other decisions have construed Rule 26A, but neither is in point with the instant case. In O’Bier v. Safe-Buy Real Estate Agency, Inc., 256 Ark. 574, 509 S.W. 2d 292, appellant filed an application for an extension of time within the 90 day period, but failed to give notice to opposing counsel. We refused to dismiss the appeal, pointing out that there was not the slightest intimation that appellee could have successfully resisted the application even though notice had been received, or that it was prejudiced in any way by its failure to receive notice. In Perry v. Perry, 257 Ark. 237, 515 S.W. 2d 640, appellee sought dismissal because appellant had obtained an extension of time under Rule 26A for alleged improper reasons, it being contended that the extension was sought, not because the court reporter was unable to meet the deadline for preparing the record, but because appellant’s counsel desired more time to prepare his brief. We actually did not pass on the question raised by the motion to dismiss (that the extension had been granted for improper reasons), stating only that the proof was not clear, but we did comment that the legislative purpose in enacting § 27-2127.1 was to eliminate unnecessary delay in the docketing of appeals to this court.
It is at once apparent that none of these decisions touch the question here at issue, and we have not heretofore had presented to us a motion to dismiss under the rule where an appellant has utterly failed to obtain an extension of time for filing the record prior to the expiration of the 90 day period.
While the trial court’s written order extending the time is not dated, it is admitted that it was not signed within the 90 day period; the order was filed on March 31, 1975, nearly 30 days after the original 90 days had expired. Of course, the “nunc pro tunc” means nothing, for courts are not permitted to enter an order “now for then” simply because such an order should have been entered at that time, but nunc pro tunc orders are only properly issued where such an order actually was made, but through clerical misprision, was not entered.
Appellant contends that appellees White and Pace,
“have no standing to raise the issue in that they are only incidental parties to this lawsuit; (b) White and Pace have failed to allege or show that they have or were prejudiced in the slightest by the extension granted by the trial court on February 28, 1975, and there is no intimation and no evidence submitted, alleged, or which can be adduced that White and Pace, if given notice, could have persuaded the trial court that the request for an extension should not be granted; (c) That evidence concerning the taking of an extension of time, if requested and taken by a Judge, designated by this Court, will demonstrate that the attorneys of record at all times knew that an extension in which to file a transcript was required due to the workload of the Court Reporter, that the order was issued by the Trial Court Judge on or prior to the 28th day of February, 1975; that directions and instructions given the trial court’s reporter concerning the extension in which to prepare and file the transcript were given by the Trial Court prior to February 28th; and that from the date of the trial itself each and every attorney participating in this trial knew of the overloaded conditions facing the court reporter which would require an extension of time in which to allow the court reporter to prepare said transcript.”
The short answer to the argument that White and Pace have no standing to make this motion is that appellant initially made White and Pace parties to the suit in its “counter-claim and cross-complaint,” wherein they prayed that “Canal should be held free of any and all claims by the cross-defendant (s), Bessie G. White and Blanch Pace.” As to prejudice, it might be said that this requirement does not appear in the rule; however, it is probably quite true that if this were the only question involved, or if failure to notify appellees’ counsel were the only question involved, we might well take a different view. Of course, general knowledge of a reporter’s workload cannot be considered sufficient to create a waiver of the rule.
Appellant argues that sustaining of the motion to dismiss would create an intolerable situation for court reporters and that the simple ordering of a transcript would place upon a court reporter a burden to produce such transcript within 90 days since, “There is no legal requirement for Appellant’s counsel to ask or move for an Extension of time in which to file the record on appeal and docket the appeal. ”
We have no intention of placing such a burden upon the court reporter. Rather, we think this responsibility is on an appellant. That party is the purportedly aggrieved party, and unquestionably the principal one interested in, and to be benefited by, a reversal of a trial court judgment. We think it obvious that, having this paramount interest, the appellant shoulders the obligation to comply with all steps in a proceeding that might redound to his (or its) benefit.
We might also point out that this is not a matter where counsel for appellees waited until after briefs had been filed, and then made their motion to dismiss the appeal. Rather, on May 2, 1975, over a month and a half before appellant’s brief was due, appellees filed a partial record and made their motion to dismiss the appeal. A response was filed and on May 27, this court passed the motion until “case heard on merits,” requiring the motion to be briefed.
As previously stated, none of the three cases herein cited, related to an extension which was not granted within the original 90 day period — and this is the very crux of the rule. Appellant argues that a trial court, under § 27-2127.1, “In its discretion and with or without motion or notice, may extend the time for filing the record on appeal and docketing the appeal ***.” That is true, but the wording immediately following the word “appeal” reads, “if the order for extension is made before the expiration of the period for filing and docketing as originally prescribed or extended by a previous order ***.” [Emphasis supplied.]
For the reasons herein stated, the appeal is dismissed. Since this motion was passed until the case was heard on its merits, the motion being briefed along with the merits of the controversy, and all court members having studied the entire briefs, it might be added that the judgment, even if considered on its merits, would be affirmed.
The nunc pro tunc was written in longhand.
Proper terminology would have been, “This order having been made on February 28, 1975, but through clerical error not having been noted, same is entered nunc pro lunc.”
Counsel for all appellees stated in their briefs and stated in oral argument that they had not been notified of the request for extension of time. Of course, these are only statements, and this decision is not predicated on that fact, though the quoted portion of appellant’s brief would indicate that there was no notice.
It is not clear whether counsel mean that Rule 26A cannot be considered a “legal requirement,” or whether counsel have overlooked the last line of the rule which commences, “Counsel seeking such an extention ***.” This is the only part of the rule which specifically refers to the attorneys, though we consider it apparent that the entire rule relates to duties of counsel. | [
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Lyle Brown, Justice.
This is a will contest case. The appellants are Gayle Ramage Nelson and William Robert Ramage, niece and nephew, and sole heirs at law of the testatrix, Maye Elizabeth Ramage Davis; the appellees are Texarkana Historical Society and Museum and State First National Bank of Texarkana, the special administrator. The probate court admitted to probate an instrument purporting to be the will of Maye Elizabeth Ramage Davis, a widow 78 years of age. The holographic instrument was not signed; the only place in the purported will where her name appeared was in the body thereof.
Appellants contend that decedent’s name appearing in the body of the instrument was not written with the intent of authenticating or executing such instrument and therefore it was error to admit it to probate. Appellees contend (1) the signature in the body of the will satisfied the requirements for validity, and (2) the court correctly considered extrinsic evidence to show decedent’s testamentary intent.
The instrument admitted to probate reads as follows:
Will December 18th 1973
I am in my sane mind today.
And I am leaving all my antiques in the living room, dining room and Victorian room and hall to Texarkana Museum in memory of my mother and father, W. R. Ramage and brother Robert Ramage and Maye Elizabeth Ramage Davis. I leave my little Pet Petite to my friend Waneeta Corzine phone — 832-3001 — no answer ring 832-1666. I want three hundred dollars taken out of my savings account at Commercial bank for Petites upkeep.
I want the house sold and money to pay any outstanding debts and for the upkeep of Antiques for Museum. I want my kitchen stove, frigidaire and everything in kitchen for Samantha Washington — my maid. I want my XL 100 television to go to Elnora Edwards my maid. I want all my jewelry a fifteen hundred dollar diamond ring all my jewelry and furs to Ethel Gandy my cousin and clothes — Montgomery Alabama. Address 3393 Lebrón St. Zip 36106.
Any money on savings pay my monthly bills.
Signed and Witnessed by (Signed) Nell Phillips
(Signed) Samantha Washington
Witness Nell Phillips, an antique dealer, testified as to her business dealings and many personal visits with the testatrix; that on December 18, 1973, the testatrix produced the will and asked Mrs. Phillips to witness it; and that she recognized the handwriting as that of the testatrix. Another antique dealer, Jack Cunningham, testified he saw the testatrix frequently; that he could identify the instrument as having been written in her handwriting; and that he discussed with testatrix the desirability of leaving her valuable collection of antiques to the museum. Cora Cook Thomas testified she and the testatrix had been good friends since high school days; that she could identify the will as being in testatrix’s handwriting; that testatrix had discussed with the witness the subject of a will and she told testatrix to have two witnesses. Catheline Cunningham, another friend of many years standing, testified she was aware that testatrix intended to leave her antiques to the museum; and that the will was entirely in the handwriting of Maye Elizabeth Ramage Davis. Appellant Gayle Ramage Nelson, niece and close neighbor of testatrix, testified that she had not been in the latter’s home for several years, conceding that she and testatrix were not very close, in fact indicated there was some feeling of animosity.
Elnora Edwards, who is mentioned in the will, cooked breakfast for the testatrix during the last eighteen months of the latter’s life; she said she was made aware that she would be remembered in the will; and that on the morning of December 20, testatrix said she had made her wilt and it was on top of the piano along with a list of pallbearers. Samantha Washington said she had worked for Mrs. Davis for some fifteen years. She said she witnessed the will on December 18; that Mrs. Phillips came in and witnessed it; and that testatrix told Ms. Washington to put the will on top of the pA.ic.
Under the provisions of our probate code of 1949, the signature of a testator need not be written at the end of the will. “Where the entire body of the will and the signature thereto shall be written in the proper handwriting oí the testator, such will may be established by the evidence of at least three credible disinterested witnesses to the handwriting and signature of the testator, notwithstanding there m ay be no attesting witnesses to such will.” Ark. Stat. Ann. § 60-404 (Repl. 1971). Smith v. MacDonald, 252 Ark. 931, 481 S.W. 2d 741 (1972).
If the testator’s name is written in or upon some part of the will other than at the end thereof, to be a valid signature it must be shown that the testator wrote his name where he did with the intention of authenticating or executing the instrument as his will. 2 Bowd-Parker: Page on Wills, § 20.9; Estate of Kinney, 16 Cal. 2d 50, 104 P. 2d, 782 (1940). Thus our problem is to determine whether the name Maye Elizabeth Ramage Davis was placed in the body of the will with the intent that it constitute a signature in addition to the intention of creating a memorial. In the second paragraph of the will we find the only mention of testatrix’s name: “And I am leaving all my antiques ... in memory of my mother and ' ether, W. R. Ramage and brother Robert Ramage and Maye Elizabeth Ramage Davis.”
/. ijpeSIees rely heavily on our case of Smith v. MacDonald, uiipj'?«. uSot the facts in that case are far different from the facts ixt the case at bar. The first line in that will describes the in-struí -lent as the “Will of Julian Leland Rutherford.” The first paragraph recites: “I, Julian Leland Rutherford ... do hereby make, publish and declare this to be my last will and Aei--uent.” The last line of the instrument then recites: “Wkiucss my hand and seal this If day of July, 1970.”
I'l'-t have abstracted at some length the testimony of the wbnrmes. The most that evidence shows is that the instrument was in the handwriting of the testatrix and that she considered it as her will. It would be sheer speculation to assume that those circumstances indicated that she intended her name in the body of the will to be her signature thereto.
Oi led at length by appellees is the California case of In re Bloch’s Estate, 248 P. 2d 21 (1952). In that case the single location of the name of the deceased was in the body of the will; in disposing of some bonds the testatrix there referred to “Souds belonging to Helene I. Bloch.” The court held that reference to constitute a signature. We discussed Bloch in our case of Smith v. MacDonald. We did not adopt the decision but merely referred to it as a “very interesting case”. In fact we quoted with apparent approval from the dissenting opinion in that case of Justice Traynor:
Regardless of where the name may appear in the instrument, there is always the possibility, of course, that it was intended as a signature. The mere existence of that possibility, however, is not enough to permit a ¡reasonable inference that it was so intended. When the ¡name is used to identify the decedent as the author of the alleged will as in Estate of Kinney, 16 Cal. 2d 50, 104 P. 2d 782 (“I Anna Leona Graves Kinney, do bequeath all my possessions to my four sisters”) or to identify the instrument as decedent’s will as in Estate of Brooks, 214 Cal. 138, 4 P. 2d 148 (“This is my will — Elizabeth Ryan Brooks”), and in addition the instrument appears to be a complete testamentary document, it may reasonably be inferred that the name was placed where it was with the intention of executing the instru-r meet. In such cases the name is linked to the alleged testamentary act and the probabilities that it was intended as a signature are strong. In the present case, on the contrary, decedent’s name appears only in the description of her property.
The legislature had a sound basis for requiring that a holographic will be signed by the testator, because that signature is the best and most reliable indication that the signer means for the instrument to be his will. We think, and so hold, that to adopt the majority rule in Bloch would amount to writing the word “signature” out of the statute.
Reversed and remanded.
Fogleman, J., dissents. | [
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George Rose Smith, Justice.
The issue in this will contest is the validity of a will which obviously was extensively altered — in fact, almost completely rewritten — by the testatrix after its original execution and attestation. The probate judge sustained the validity of the instrument, on the ground that the testatrix intended for it to be her will. The appellant, the testatrix’s brother, contested the will and now contends, correctly, that the altered instrument must be rejected, because it was not re-executed and re-attested in its altered form.
The instrument consists of two pages. The first page, on white paper, is very badly typed. It contains seven numbered paragraphs. The last six of those paragraphs make six different bequests or devises and constitute all the dispositive provisions in the will. Paragraph “Seventh” is the residuary clause, leaving the testatrix’s real property and certain personal property “to my Sister, Rena Glass.”
The second page, on blue paper, is neatly typed. It contains the final paragraph, which reads: “Fifth: I hereby appoint my sister, Rena Glass, executrix of this my last will and testament on this 25th day of July, 1964.” After that come the signature of the testatrix, Myrtice Westbrook, the attestation clause, and the signatures of two attesting witnesses.
It is conclusively shown by the testimony, as well as by the will itself, that page one was retyped (presumably by the testatrix) and substituted for the original page one, which apparently was destroyed. In addition to the variances that we have mentioned — the differences in the color of the paper, in the typing, and in the paragraph numbers — page one refers to the testatrix’s sister as Rena Glass, although she did not marry Mr. Glass until some 18 months after the date of the will, July 25, 1964. (On page two Rena’s surname at the time, Andrews, was obviously erased, and the name “Glass” typed over the erasure.)
The trial judge based his decision upholding the will upon his finding that it was the testatrix herself who retyped and substituted the first page of the will. We have no quarrel with that finding of fact, but it does not serve to validate the altered will. Here the testatrix, in effect, revoked all the dis-positive provisions in her original will and substituted those appearing on the rewritten first page of the instrument offered for probate. In those circumstances a re-execution and re-attestation of the will were essential to its validity. Walpole v. Lewis, 254 Ark. 89, 492 S.W. 2d 410 (1973); Cook v. Jeffett, 169 Ark. 62, 272 S.W. 873 (1925). Hence the altered instrument cannot be probated as the testatrix’s will.
Reversed. | [
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LAVENSKI R. SMITH, Justice.
Appellant Canal Insurance Company (“Canal”) petitioned for review from a court of appeals decision remanding the case to the Crawford County Circuit Court for a determination of attorney’s fees to be awarded to Appellee Newcourt Financial, Inc. (“Newcourt”), under Ark. Code Ann. § 23-79-208. We granted the petition pursuant to Arkansas Supreme Court Rule l-2(e). However, upon review, we agree that the case should be remanded for determination of fees, penalty, and interest.
Facts
In early 1996, Mike Fisher bought a commercial truck and financed it through Newcourt. He insured it with Canal in a policy issued January 3, 1996. Attached to the policy was a “Loss Payable Clause” which indicated that any loss or damage would be payable to Newcourt in accordance with its Hen interest. It further provided that Newcourt’s right to payment “shall not be invalidated by an act or neglect of [Fisher]....” On November 30, 1996, Fisher, while traveling on Interstate 40 near Webbers Falls, Oklahoma, lost control of his truck, ran off the road, and overturned. Shortly after overturning, the truck caught fire and burned. The truck was a total loss. Fisher properly reported the loss to Canal and requested payment under the insurance policy. Canal investigated the claim and ultimately denied payment. Canal believed that Fisher intentionally caused the fire. It denied the claim contending that loss due to arson is specifically excluded from coverage under the policy.
To have its rights and obligations under the policy determined, Canal filed a declaratory-judgment action in the Crawford County Circuit Court on March 20, 1997. Canal sought a decision by that court that Fisher purposely caused the truck fire and that Canal, therefore, had no duty to pay under the policy due to arson. It also alleged that if Fisher’s acts caused the loss, Newcourt should be denied coverage under the loss-payee clause as well. Canal named both Fisher and Newcourt in the complaint and served them separately. Canal specifically alleged that “Mike Fisher and Newcourt each have or claim an interest which would be affected by a declaration regarding coverage under the Canal policy, and therefore they are necessary parties to this lawsuit.” In substance, Canal requested only for a determination from the court whether Fisher caused the loss by intentional conduct.
Newcourt answered and counterclaimed on April 15, 1997. Fisher answered on April 24, 1997. In its counterclaim, Newcourt requested two things. First, Newcourt requested payment of all attorney’s fees, twelve percent penalty, interest and costs under several statutory provisions, including Ark. Code Ann. § 23-79- 208. Second, Newcourt requested that it have judgment against Canal for the full amount of its interest in the policy proceeds for the loss that occurred. Newcourt asserted that even if Fisher committed arson, it would still be entitled to payment under the terms of loss-payee clause. Canal filed an amended complaint and an answer to Newcourt’s counterclaim on April 25, 1997.
The circuit court tried the matter to a jury on August 17, 1998. The jury returned a verdict in Fisher’s favor finding no arson. Flowever, the parties disagreed about the effect of the declaratory judgment. Both Newcourt and Fisher filed posttrial requests for attorney’s fees. Canal responded on August 31, 1998, arguing that because it brought a declaratory-judgment action, attorney’s fees were only allowed under Ark. Code Ann. § 23-79-209, and that fees could only be paid to Fisher’s attorney. Canal also argued that fees were not allowed to Newcourt under Ark. Code Ann. § 23-79-208.
The trial court entered its judgment on August 31, 1998, wherein it declared that “insurance coverage existed for the loss of the 1996 Marmon truck owned by Defendant, Mike Fisher and financed by Defendant, Newcourt Financial, Inc.” Furthermore, the court ordered Canal to pay the insurance policy proceeds to Fisher and Newcourt, as their interests appear. Finally, the court awarded $3,300.00 in attorney’s fees to Fisher as “holder” of the policy. However, the court denied attorney’s fees to Newcourt as loss-payee, citing Ark. Code Ann. § 23-79-209. On September 14, 1992, Newcourt filed a motion to amend judgment and requested a hearing before the court to present its issues, which the trial court denied. Newcourt timely filed its notice of appeal on October 2, 1998, and an amended notice on November 13, 1998.
On appeal to the Arkansas Court of Appeals, Newcourt argued that the trial court erred in failing to award the statutory penalty of twelve percent prejudgment interest, and reasonable attorney’s fees under Ark. Code Ann. § 23-79-208. In response, Canal contended that Newcourt was not entided to any remedies because this was a declaratory-judgment action governed by Ark. Code Ann. § 23-79-209, not Ark. Code Ann. § 23-79-208. Canal contended that Ark. Code Ann. § 23-79-209 does not provide for fees for a party in Newcourt’s position. The court of appeals, in its October 6, 1999 opinion, determined that Newcourt satisfied the requirements of Ark. Code Ann. § 23-79-208 and was entitled to the policy proceeds plus the penalty and fees required under Ark. Code Ann. § 23-79-208. The court of appeals remanded the matter to the trial court to determine the correct amount of fees and costs due Newcourt.
Standard of Review
On a petition for review, we consider the case as if it were originally filed with this court. Raynor v. Kyser, 338 Ark. 366, 993 S.W.2d 913 (1999); ERC Contr. Yard & Sales v. Robertson, 335 Ark. 63, 977 S.W.2d 212 (1998). Because the trial judge rather than the jury decided the issue of attorney’s fees, the standard of review on appeal is whether the trial judge’s findings were clearly erroneous. Ark. R. Civ. P. Rule 52(a); Ford Motor Credit Co. v. Ellison, 334 Ark. 357, 974 S.W.2d 464 (1998); McQuillan v. Mercedes-Benz Credit Corp., 331 Ark. 242, 961 S.W.2d 729 (1998). We view the evidence in a light most favorable to the appellee, resolving all inferences in favor of the appellee. Id. On review of an issue of statutory interpretation, we are not bound by the decision of the circuit court. Fiowever, in the absence of a showing that the trial court erred in its interpretation of the law, that interpretation will be accepted as correct on appeal. Bryant v. Weiss, 335 Ark. 534, 983 S.W.2d 902 (1998); Hazen v. City of Booneville, 260 Ark. 871, 545 S.W.2d 614 (1977).
Attorney’s fees
At issue in this case is the interpretation of two insurance statutes that address payment of attorney’s fees. When read together these provisions resolve the instant case. Ark. Code Ann. § 23-79-208, entided “Damages and attorney’s fees on loss claims,” states in pertinent part: ■
(a)(1) In all cases where loss occurs and the cargo, fire, marine, casualty, fidelity, surety, cyclone, tornado, life, health, accident, medical, hospital, or surgical benefit insurance company and fraternal benefit society or farmers’ mutual aid association liable therefor shall fail to pay the losses within the time specified in the policy after demand made therefor, the person, firm, corporation, or association shall be liable to pay the holder of the policy or his assigns, in addition to the amount of the loss, twelve percent (12%) damages upon the amount of the loss, together with all reasonable attorney’s fees for the prosecution and collection of the loss.
Its statutory neighbor, Ark. Code Ann. § 23-79-209, entitled “Allowance of attorney fees in suits to terminate, modify, or reinstate policy,” states in pertinent part:
(a) In all suits in which the judgment or decree of a court is against a life, fire, health, accident, or liability insurance company, either in a suit by it to cancel or lapse a pohcy or to change or alter the terms or conditions thereof in any way that may have the effect of depriving the holder of the pohcy of any of his rights thereunder, or in a suit for a declaratory judgment under the policy, or in a suit by the holder of the pohcy to require the company to reinstate the pohcy, the company shall also be liable to pay the holder of the pohcy all reasonable attorneys’ fees for the defense or prosecution of the suit, as the case may be.
These two provisions address attorney’s fees in different types of lawsuits, both of which happen to be present in this case. It must be borne in mind that this case involves both a claim for declaratory judgment by Canal and a counterclaim for payment of the insurance claim and attorney’s fees by Newcourt. The declaratory-judgment action implicates section 23-79-209, whereas the counterclaim issues are governed by section 23-79-208.
I. Arkansas Code Annotated § 23-19-209
From its plain language section 23-79-209 applies to actions where judgment is ultimately rendered against certain insurance companies in suits initiated by the companies. It specifically includes a declaratory-judgment action. It also applies to suits filed by holders of policies seeking to reinstate a canceled policy. In this case, Canal filed a declaratory-judgment action to determine whether coverage existed under the facts. Specifically, Canal prayed for the following relief:
FIRST: That the damages to the 1989 Marmon truck insured by the Canal pohcy were intentionally caused by the actions of the Defendant, Mike Fisher and that, therefore, coverage does not exist under the Canal Insurance Company policy with respect to any claim asserted by Mike Fisher or Newcourt arising out of the loss resulting from the November 30, 1996 incident.
SECOND: That, in the alternative, that the damages to the 1989 Marmon truck insured by the Canal policy were intentionally caused by the actions of the Defendant, Mike Fisher, and that, therefore, the Plaintiff, Canal, is entitled to judgment against Mike Fisher in the amount of any monies that Canal is held to be liable to Newcourt arising out of Mike Fisher’s intentional acts.
THIRD: That Canal Insurance Company is entitled to recover its costs herein and have all other just and proper relief.
Clearly, Canal asked the court to “declare” whether coverage existed under the policy. A declaratory-judgment action seeks to avoid uncertainty and insecurity with respect to rights, status, and other legal relations. See Ark. Code Ann. §§ 16-111-101 et seq. Canal’s complaint for declaratory judgment asked the court to determine a right or immunity on its behalf. It sought no other relief. Here, the jury declared that the facts did not support an allegation of arson and that coverage existed under the insurance policy. Accordingly, the fees awarded to Fisher under section 23-79-209 were proper as he is the “holder” of the policy and the prevailing party in the declaratory-judgment action. Canal questioned Fisher’s coverage, and his defense defeated the declaratory-judgment action, entitling him to fees for his defense in that action. The trial court’s award of attorney’s fees to Fisher is therefore affirmed.
II. Arkansas Code Annotated § 23-79-208
Section 23-79-208, as contrasted with section 23-79-209, applies “in all cases where loss occurs and the ... insurance company ... therefore shall fail to pay the losses within the time specified in the policy after demand [is] made....” Ark. Code Ann. § 23-79-208(a)(1). In this case, because the declaratory-judgment action “orders nothing to be done,” it was only Newcourt’s counterclaim which would enable the circuit court to order any affirmative relief to Newcourt or Fisher. By ordering that Canal pay benefits to Newcourt, the circuit court effectively granted Newcourt’s counterclaim under section 23-79-208. This section allows fees, penalties, and interest to the “holder of the policy or his assigns.”
In its decision, the circuit court denied attorney’s fees and costs to Newcourt, finding that section 23-79-209 does not authorize attorney’s fees to a loss-payee. If based solely upon the language of section 23-79-209, that would appear to be the correct finding since section 23-79-209 only allows fees for the “holder”of the policy. However, because the court ordered payment under the policy, it necessarily did so pursuant to the counterclaim for payment for a “loss” under section 23-79-208 since the declaratory-judgment action would not provide such relief. By contrast, attorney’s fees, costs, and the 12% penalty are due the “holder” or his “assigns” in a section 23-79-208 action.
In their briefs, the parties summarize cases involving an award of fees under sections 23-79-208 and 23-79-209 and their predecessors, and the relation between these two sections. However, none of the cases cited by either party directly addresses the issue of the award of attorney’s fees to the loss-payee under section 23-79-208. Canal asserts that Mid-South Ins. Co. v. Dellinger, 239 Ark. 169, 388 S.W.2d 6 (1965) (decision under prior statute), “stands for the proposition that the denial of attorney’s fee, penalty and interest in a declaratory judgment action” in cases such as this is appropriate. Contrary to Canal’s assertion, this court actually determined that when an insured is required to defend an action by an insurer and files a counterclaim for attorney’s fees and the penalty under section 23-79-208, such fees may be available. However, the Dellinger court determined that “justice is fully served by denying an attorney fee in this particular case.” Dellinger, 239 Ark. at 172. (Emphasis added.) Therefore, despite Canal’s contention, Dellinger actually supports an award for fees in a counterclaim under section 23-79-208 for defending a section 23-79-209 declaratory-judgment action when a loss is actually recovered. However, Dellinger did not involve a loss-payee.
As Canal notes, we held in Home Ins. Co. v. Crawford, 251 Ark. 843, 475 S.W.2d 889 (1972), that a section 23-79-208 claim for penalties and fees is permissible as a counterclaim against an insurer’s section 23-79-209 action. This is entirely consistent with the implication in Dellinger. The Crawford court stated:
No error was committed in the allowance of the 12% penalty pursuant to Ark. Stat. Ann. § 66-3238 (Repl. 1966) [Ark. Code Ann. § 23-79-208] on the counterclaim filed by appellee. That statute provides for the payment of the penalty where a loss has occurred and the insurer fails to pay after demand has been made therefor. We can find nothing in Ark. Stat. Ann. § 66-3239 (R.epl. 1966) [Ark. Code Ann. § 23-79-209] that prevents the allowance of the penalty upon a counterclaim for a loss.
Crawford, 251 Ark. at 845. Crawford was the insured under the policy and, as in Dellinger, no loss-payee participated as a party.
Canal strongly argues that this court has already held that a loss-payee is not entitled to the section 23-79-208 remedies. See Farmers Mutual Ins. Co. v. Lane, 278 Ark. 53, 643 S.W.2d 53 (1982). We disagree. In Lane, the trial court ordered Farmers to pay the penalty and fees under section 23-79-208 for failure to make timely payment to the insureds, the Lanes. The Lanes’ insurance contract had a designated loss-payee, a Mrs. Smith, who ultimately received the insurance payments. The insurance company argued that the Lanes were not entided to fees under the statute because the insurance policy had lapsed before the loss occurred. The Lanes’ policy had, in fact, lapsed before the loss occurred, but the loss-payee still had an enforceable right to payment from the insurance company for ten days after the policy expired. The loss occurred within the ten-day period. The court, in effect, held that because the Lanes had to bring the action to recover the insurance payment on behalf of the loss-payee who still had rights under the policy, the Lanes were entitled to the fee and penalty under section 23-79-208. Lane is clearly distinguishable from the instant case. The loss-payee in Lane was not a party to the action and made no claim for attorney’s fees. The insured filed the claim and pursued it to judgment. Given those facts, it was entirely reasonable for the court to award the penalties and fees to Lane while ordering that the insurance proceeds go to the loss-payee.
As the court of appeals noted, this court has held that a loss-payee is an “insured” in the sense that it can sue to enforce a policy under which it would ultimately be paid. See Huddleston v. Home Life Ins. Co. of New York, 182 Ark. 1036, 34 S.W.2d 221 (1931). See also Lucas County Bank of Toledo v. Am. Cas. Co., 221 Ark. 916, 256 S.W.2d 557 (1953) (Lucas discusses the difference between open and standard loss-payee clause language. Specifically the court emphasized that standard clauses, such as in the instant case, could not be invalidated by “any act of the owner”). We further stated in Federal Life & Cas. Co. v. Weyer, 239 Ark. 663, 391 S.W.2d 22 (1965) that “[I]t is well settled that attorney’s fees and penalty attach if the insured is required to file suit....” In Equitable Life Assurance Soc. v. Rummell, 257 Ark. 90, 514 S.W.2d 224 (1974), we stated:
The fee is allowed only to reimburse an insurance policyholder or beneficiary for expenses incurred in enforcing the contract and to compensate him in engaging counsel thoroughly competent to protect his interests. (Citations omitted.) It is not the property of the attorney, but is indemnity to the litigant. (Citations omitted.) The purpose of the statute is to permit an insured to obtain the services of a competent attorney and the amount of the allowance should be such that well prepared attorneys will not avoid this class of litigation or fail to devote sufficient time for thorough preparation. (Emphasis added.)
Rummell, 257 Ark. at 91. Given the rationale for the statute, it would seem reasonable that if the loss-payee, as a beneficiary of the policy, brought the lawsuit to enforce payment which would ultimately be paid to it, the loss-payee’s attorneys should be allowed the fee.
Section 23-79-208 does not limit recovery of penalties and fees to just the holder of the insurance contract. It also permits recovery by the “assigns” of the holder. In the instant case, the express language of the loss-payee clause in Canal’s policy assigned Fisher’s payment rights under the insurance policy to Newcourt commensurate with Newcourt’s security interest. Newcourt thus became an assign of Fisher for purposes of section 23-79-208.
In conclusion, we hold that Newcourt, based upon its express contract rights to payment of insurance proceeds commensurate with its interest in the insured’s property, was entitled to seek enforcement of those contract rights under section 23-79-208. Newcourt’s entitlement to payment did not depend upon whether or not Fisher committed arson. The loss-payee clause stated that fact plainly. Additionally, as an assign of Fisher, Newcourt was also entitled to the attorney’s fees and penalties available under section 23-79-208, including prejudgment interest. The trial court correctly granted Fisher attorney’s fees for his defense of Canal’s section 23-79-209 claim. It also correctly awarded insurance proceeds to Newcourt as loss-payee. It should have also granted Newcourt penalties, interest and fees for its prosecution of a separate successful claim under section 23-79-208. Therefore, we reverse and remand to the trial court for entry of an order consistent with this opinion.
Affirmed in part; reversed in part, and remanded.
Newcourt Fin., Inc. v. Canal Ins. Co., 67 Ark. App. 347, 1 S.W.3d 452 (1999).
The purpose is further detailed in the Commentary to this Act which states:
The Declaratory Judgment may be either affirmative or negative in form and effect; it may determine some right, privilege, power or immunity in the plaintiff, or some duty, no-right, liability or disability in the defendant. The judgment is not based on any wrong already done or any breach committed. It is not required to be executed, as it orders nothing to be done. It simply declares rights and duties so that parties may guide themselves in the proper legal road, and, in fact, and in truth, avoid litigation. (Emphasis addded.) | [
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John A. Fogleman, Justice.
This suit was brought on September 11, 1970, by Jack Wood Construction Company against Robert Ford, d/b/a Ford Construction Company, and St. Paul Fire & Marine Insurance Company. Appellant alleged that $12,012 was due it on a contract with Ford to do certain construction work on a track to be a part of the athletic facilities at Arkansas Polytechnic College. The allegations asserting liability against appellee St. Paul Fire & Marine Insurance Company were based upon the issuance by that company of a statutory payment and performance bond allegedly guaranteeing the payment of obligations of Ford in connection with the construction of athletic facilities. St. Paul promptly filed answer, simply denying that it was indebted to appellant in any sum.
Appellant asserted that there was an oral contract entered into on August 29, 1969, by which it agreed to furnish certain materials and perform certain labor on behalf of Ford in the construction of the track, the date of completion of which was to be dependent upon the weather and “sub-grade” conditions. After having filed two motions to require appellant to make his complaint more definite and certain, Robert Ford d/b/a Ford Construction Company filed a general denial and a counterclaim. In the counterclaim Ford alleged that breaches of the contract by appellant had caused him, as general contractor, to be assessed with a penalty of $10,000.
Ford d/b/a Ford Construction Company, moved for, and obtained permission, to make Arkansas Polytechnic College a third party defendant. This motion was filed October 15, 1971, and granted October 25, 1971. The third party complaint was filed by Ford Engineering & Construction Company, a Nebraska corporation. On November 5, 1971, the day this complaint was filed, this corporation and Robert Ford also filed a motion to correct the name of the defendant from Robert Ford d/b/a Ford Construction Company in all pleadings and for dismissal of the complaint as to Robert Ford d/b/a Ford Construction Company. On the 24th day of April, 1972, this motion was denied. On March 21, 1973, the Board of Trustees of Arkansas Polytechnic College filed a demurrer challenging the third party complaint against it, alleging that it had never been served with an order permitting the intervention of Ford Engineering and Construction Company. In this pleading, the Ford corporation was characterized as an interloper. In response to this demurrer, the Ford corporation pleaded that it was the real and actual party in interest instead of Robert Ford d/b/a Ford Construction Company. Following a further extensive battle of pleadings by the parties, the case was set for trial in June, 1974. After testimony on behalf of Ford Engineering & Construction Company had been completed, the court granted the college board’s motion to dismiss the third party complaint against the college board “upon constitutional grounds.” After testimony on behalf of defendants Robert Ford d/b/a Ford Construction Company and St. Paul Fire and Marine Insurance Company, they moved for dismissal on the basis that they were not proper parties. At that time, Robert Ford had testified that he was president of Ford Engineering and Construction Company and that this was a family held corporation. On cross-examination by the attorney for the college board he stated that he was the general contractor and contracted with Wood. He also said that he was responsible for the subcontract.
The ground for St. Paul’s motion was that, since it had not made any bond on behalf of Robert Ford d/b/a Ford Construction Company, appellant was not entitled to any judgment against it. This motion was first granted. The court then granted a motion to dismiss as to Ford, on the basis that Wood’s contract was with the corporation. The circuit judge clearly indicated that the motion was granted for defect of parties, and not as a directed verdict.
St. Paul Fire & Marine Insurance Company never raised any question about any defect of parties until after all evidence in chief on behalf of the plaintiff, appellant here, and both defendants, appellees here, had been completed. When it answered the complaint, this defendant obviously knew that Robert Ford, as a sole proprietor, was named as the defendant, and the work to be done under the contract was clearly identified. Its answer did not put the status of any party in issue. Instead it had the effect of admitting the status of its co-defendant. Ark. Stat. Ann. § 27-1121 (Repl. 1962). See Meek v. United States Rubber Tire Company, 244 Ark. 359, 425 S.W. 2d 323. No subsequent pleading by St. Paul ever raised this issue, even though Wood, by its pleadings, specifically identified the work for which it claimed to have been a sub contractor and Ford had filed its motion on November 5, 1971, specifically alleging that Ford, as an individual proprietor, was an improper party and that St. Paul was surety on the corporation’s bond and not for Ford, individually. The motion was a joint one by Ford and the Ford corporation and simply asked that the name of the party defendant be corrected. Appellant had responded by alleging that Ford and the corporation were jointly and severally liable. That motion was denied. Ford Engineering & Construction Company, as third party plaintiff, proceeded on its third party complaint, and filed pleadings in the principal action jointly with Ford.
There was no sound basis for the dismissal. A defendant may demur to a complaint where there is a defect of parties, plaintiff or defendant. Ark. Stat. Ann. § 27-1115 (Repl. 1962). The defect here did not appear upon the face of the complaint, but the question was not raised by St. Paul by any written pleading. Failure of a plaintiff to join a necessary defendant in an action is waived by a named defendant’s failure to specifically plead the defect by demurrer or answer, or to move that the missing party be joined. Jordan v. Muse, 88 Ark. 587, 115 S.W. 162; Murphy v. Myar, 95 Ark. 32, 128 S.W. 359. But the principal on the bond was not a necessary party. National Surety Corp. v. Ideal Lumber Co., 249 Ark. 545, 460 S.W. 2d 55. The failure to make Ford Engineering and Construction Company a party defendant did not prejudice St. Paul in any way, and the dismissal as to St. Paul was clearly erroneous.
We also find error in the dismissal as to Robert Ford d/b/a Ford Construction Company. The motion to dismiss by Ford was made when the trial was virtually complete. All the while the corporation of which he was president was actively participating in the trial, at least as a third party plaintiff, under permission to plead as such, granted to Robert Ford. In his request for this permission Ford alleged that he had ascertained that a contract between him and the college bore directly upon the lawsuit. The permission was granted over Wood’s objection. Ford, individually, had filed an answer which consisted of a general denial and a counterclaim. To this counterclaim, Ford had alleged that he and Jack Wood Construction Company had entered into an agreement under which Wood was to install a blacktop base, and asphalt binder, and to do necessary “sub-grading” requirements on the athletic field at the college, but that Wood had failed to complete the project in the time and manner agreed upon, thus causing a penalty to be assessed against Ford. He prayed judgment against Jack Wood Construction Company for the amount of the penalty. Wood then asked that Ford be required to make his counterclaim more definite and certain by setting forth the contract terms and conditions in specific detail and to attach a copy of any written instrument containing any of these terms. Ford’s only response was that the contract was oral and that any specific details could be more appropriately obtained through interrogatories or deposition.
In the third party complaint there were allegations that Robert Ford, acting for Ford Engineering & Construction Company, had entered into some agreement with the college. Nearly a year after the motion to correct the name of the defendant was denied, the college board filed a demurrer to the third party complaint on the ground that the Ford corporation was not properly a party to the action. This demurrer was later overruled but Ford Engineering & Construction Company had responded, alleging that it was the actual and real party in interest in the litigation. Later, the attorneys, who represented both Ford, individually, and the corporation, gave notice that the defendant and third party plaintiff would take certain depositions. Still later, Ford and Ford Engineering & Construction Company, as the defendant and the third party plaintiff, jointly filed a motion to require the plaintiff (appellant) to make an amendment to its complaint more definite and certain.
Thus, after a battle of pleadings extending over a period of nearly four years, Robert Ford moved for a dismissal, which was granted for a defect of parties.
If Ford Engineering & Construction Company had any place in the litigation at all, it was as a defendant or as an intervenor. This is not a tort action, and third party practice, strictly speaking, was not authorized in this action at the time Robert Ford was asking for permission to file the third party complaint or at the time Ford Engineering & Construction Company filed it. See Ark. Stat. Ann. § 34-1007 et seq (Repl. 1962); Ark. Stat. Ann. § 27-1134.1 (Supp. 1973). But we regard the substance of pleadings, rather than their label. Little Rock Land Company v. Raper, 245 Ark. 641, 433 S.W. 2d 836. When we do so, the Ford corporation’s filing the third party complaint under permission granted to Ford, individually, through the attorneys who represented both parties throughout the litigation, when considered along with the counterclaim of Ford, d/b/a Ford Construction Company, should be considered as an entry of appearance by the corporation and the pleading to be a cross-complaint under Ark. Stat. Ann. § 27-1134 (Repl. 1962). It is noteworthy that in response to the Ford motion to substitute the corporation for the individual, Wood had alleged that they were jointly and severally liable on the contract and that the corporation had later asserted that it was the real party in interest in the case. Any lingering doubt about the entry of appearance and the fact that the Ford corporation had become a party to the action is clearly eliminated by the motion to correct (which was denied) when Wood responded that he contended that there was joint and several liability by the individual and the corporation, and the corporation’s denial that it was an interloper and fiat assertion that it, not Ford individually, was the real party in interest. One may to all intents and purposes be a party to an action, even though all the formalities in making him such upon the record have not been observed. See Phillips v. Matthews, 203 Ark. 100, 155 S.W. 2d 716.
Even if the third party complaint were not to be considered as a cross-complaint by a defendant in the action, Ford Engineering and Construction Company was, to say the least, an intervenor. An intervention is a proceeding by which a person, not originally a party to an action, is permitted to and does become a party to the pending proceeding for the protection of some right or interest alleged by him to be affected by the proceeding. Gorham v. Hall, 172 Ark. 744, 290 S.W. 357. The alignment of the parties as plaintiffs and defendants after an intervention depends upon substance rather than form and may be determined by analysis of the proceedings in the case. 59 Am. Jur. 2d 616, Parties § 178; Allman v. Potts, 140 Mont. 312, 371 P. 2d 11, 92 A.L.R. 2d 1104 (1962). See also, Gorham v. Hall, supra; Savage v. Cowen, 33 S.W. 2d 433, (Tex. Com. App., 1930).
A defect of parties may be cured by intervention of the nonjoined party. Fairbanks v. McAllen, 170 S.W. 2d 581 (Tex. Civ. App. 1943). A review of the pleadings in this case shows that Ford Engineering & Construction Company cured any defect of parties that might have existed.
Appellees argued that appellant failed to comply with our Rule 9 by not abstracting the testimony at the trial so we could determine whether Wood was barred from a recovery due to its failure to perform. This might be so if the circuit court has directed a verdict in the case. But it did not, and the circuit court expressly disavowed any intention to do so, saying that he granted the oral motions of appellees to dismiss.
The judgment of dismissal is reversed and the cause remanded for further proceedings. | [
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George Rose Smith, Justice.
Wayne Bridges, Lamar Hughes, and Mike Hurst were jointly tried upon a charge of embezzlement, were found guilty, and were each sentenced by the jury to imprisonment for three years. Bridges and Hughes have appealed, arguing several points for reversal. Their most serious contention is that the State’s testimony, even if accepted as true, established the offense of larceny rather than that of embezzlement. This contention must be sustained.
The offense occurred at the Rock Tavern, in the city of Paris, at about closing time on the night of March 8, 1973. Charlotte Kuykendall, an employee, was in charge of the tavern. Four customers were present: The appellants Bridges and Hughes, both age 23, their codefendant Hurst, and Sue Sims.
The proof tends to show that Charlotte asked the other four to co-operate with her in faking a robbery, in return for her promise to provide them with at least a case of free beer. The others agreed. One of the five, probably Bridges, took some $300 from the cash register and hid it outside the building. Charlotte then called the police and reported the alleged robbery.
The police arrived and evidently became suspicious, for they took all five participants to headquarters for questioning. Both appellants at first gave written statements describing an armed robbery committed by two men who came in the tavern after closing time. Both soon retracted their statements, Bridges admitting orally that the robbery had been faked and Hughes making a similar written admission. The missing money was quickly found.
The charge of embezzlement was based upon Ark. Stat. Ann. § 41-3927 (Repl. 1964), reading in part as follows:
If any clerk, apprentice, servant, employee, agent or attorney of any private person . . . shall embezzle or convert to his own use . . . without the consent of his master or employer, any money . . . belonging to any other person, which shall have come to his possession, or under his care or custody, by virtue of such employment, ... he shall be deemed guilty of larceny, and on conviction, shall be punished as in case of larceny.
The statute has been in force since 1838 and has been construed in many cases. In Atterberry v. State, 56 Ark. 515, 20 S.W. 411 (1892), an employee of a store had taken articles of clothing that were kept for sale. We held the offense to be larceny, saying that the articles “were legally in the possession of the owner, even if for a time left in the custody of the salesman; and an appropriation of them by the latter was a trespass on the possession of the former, within the meaning of the law defining larceny.” That holding was reaffirmed recently in Edwards v. State, 244 Ark. 1145, 429 S.W. 2d 92 (1968), where we held that a clerk in charge of a bus station, who took money from a drawer, was properly chargeable with larceny, as he merely had custody of his employer’s property.
In Fleener v. State, 58 Ark. 98, 23 S.W. 1 (1893), we held that the statutory reference to property “belonging to any other person” means any person other than the employee rather than any person other than the employer. We went on to say:
This is not in conflict with Powell v. State, 34 Ark. 693, which was an indictment against a general household servant, who, having the custody of some tools under the superior possession of the master, appropriated the tools to his own use. This was held to be larceny, and not embezzlement, and the decision is in accord with the weight of authorities. The same authorities hold that when the servant comes into possession of the property before the master, and his possession is by reason of his relation as such servant, and he appropriates it to his own use before it comes into the possession of the master, and while yet in his possession, the fraudulent appropriation thus made is embezzlement, and not larceny. See note 98 Am. Dec. 126-129.
The rule of construction in New York, Missouri and Minnesota, and perhaps other States, is considered necessary in order that there be not a hiatus in the law, as there would otherwise seem to be.
The crime of embezzlement is purely statutory and is separate and distinct from larceny. Compton v. State, 102 Ark. 213, 143 S.W. 897 (1911). In Hall v. State, 161 Ark. 453, 257 S.W. 61 (1923), we sustained the State’s right to allege separate counts of larceny and embezzlement arising from the same transaction, where it might be doubtful which would be established by the proof. In that connection we said:
Larceny and embezzlement belong to the same family of crimes. If the actual or constructive possession of the property was in the owner, then the wrongful conversion would be larceny, and not embezzlement. There must be lawful possession in the defendant at the time of the conversion to constitute embezzlement. The distinguishing feature of embezzlement is that the taking essential to larceny is not required, a breach of trust taking its place.
In the case $t bar the possession of the property, as in Alterberry and Edwards, seems to have been that of the owner, the employee having mere custody. Consequently the State’s proof established larceny, rather than embezzlement as charged in the information. The Attorney General is mistaken in arguing that the appellants waived the point now at issue by not objecting to the information. The information was not fatally defective; it simply charged the wrong offense, in the light of the subsequent proof. The defendants were under no duty to alert the prosecution to that possibility.
On the other hand, we cannot sustain the contention, argued by Hughes, that the evidence is insufficient because (a) Hughes had no position of trust with regard to the money and (6) Charlotte Kuykendall did not physically take the money from the cash register. If, as the State’s proof tended to show, all five of those present, in return for a promised reward, abetted Charlotte by agreeing to conceal the truth, they were guilty as principals under Ark. Stat. Ann. § 41-118.
Hughes also argues that the trial court erred in refusing to grant his repeated requests for a separate trial. The original pretrial motion for a severance was properly denied, as no basis for the motion was then shown. During the trial, however, it developed that Hughes’s counsel was handicapped in his cross-examination of the officers, because the court refused to allow the jury to consider in Hughes’s defense certain admissions by the other participants that were detrimental to Bridges. Problems also arose concerning cross-implicating confessions. Grooms v. State, 251 Ark. 374, 472 S.W. 2d 724 (1971); Moshy and Williams v. State, 246 Ark. 963, 440 S.W. 2d 230 (1969). In view of those circumstances a severance should be granted if the cases are retried.
We need not discuss the appellants’ other contentions, for they involve matters not apt to arise upon retrial.
Reversed and remanded for further proceedings.
Jones, J., dissents. | [
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Lyle Brown, Justice.
Our Supreme Court Rule 9 (d) provides, among other things, that the appellants provide an abstract of the record as is necessary to an understanding of all questions presented to us for decision. The Rules of the Supreme Court are to be found in Ark. Stat. Ann., Vol. 3A, 1962 Replacement, beginning at page 102 of the 1973 pocket supplement.
This case is affirmed for failure to comply with the recited portion of Rule 9 (d). The trial court entered a detailed judgment consisting of four pages. The judgment sets out many specific findings of facts and conclusions of law covering the numerous facets of the case. (The case was tried to the court without a jury.) Appellant’s abstract of the judgment consists of ten lines which actually is an abstract only of the last paragraph of the court’s judgment. An abstract of all the specific findings of the court is necessary to an understanding of the issues to be decided.
We do not consider our action unduly harsh because a majority of the court would have affirmed on the merits had they been reached.
Affirmed. | [
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Frank Holt, Justice.
Appellant, administratrix of the estate of Emmett Bardwell, brought this action against appellee alleging that appellee negligently drove a pickup truck which struck and killed appellant’s decedent. A jury denied recovery by finding the comparative negligence of appellee was 10% and appellant’s decedent 90%. The sole issue on appeal is the propriety of the trial court instructing the jury as to “sudden emergency” (AMI [Civil] 614). It is argued that under the facts and circumstances it was prejudicial to give the instruction and we agree.
At approximately 3:50 a.m., the appellee, who was an off-duty state policeman, found the decedent’s truck wrecked on an interstate highway. Appellee could not locate a telephone in the vicinity. He drove back to the scene of the accident and, because of insufficient light, was unable to determine if the driver of the wrecked vehicle was in the vicinity. Appellee returned to his truck, left the interstate and drove down the lateral service road to find assistance. Cars driving in the opposite direction on the interstate caused appellee to drive with his headlights on lowbeam. He was in his proper lane of traffic driving 70 miles per hour, the speed limit being 60, when he suddenly saw the decedent 50 feet ahead in appellee’s lane. This was approximately one mile from the scene of the decedent’s wrecked vehicle. The decedent was walking two feet from the center line in the same direction as appellee was traveling. Appellee testified that the combination of lights from the approaching vehicles on the interstate and the clothing the decedent was wearing prevented him from seeing decedent until he was 50 feet from him. Appellee didn’t think anyone would be walking on the access road. Appellee testified that he did not have sufficient time to take evasive action or apply his brakes before he struck the decedent. Thereafter, the truck skidded several hundred feet, stopping in a field. There is substantial evidence that the decedent was intoxicated at the time of the fatal accident.
The instruction given to the jury is AMI (Civil) 614 (Sudden Emergency) which reads:
A person who is suddenly and unexpectedly confronted with danger to himself or others not caused by his own negligence is not required to use the same judgment that is required of him in calmer and more deliberate moments. He is required to use only the care that a reasonably careful person would use in the same situation. (Emphasis added.)
The appellee contends that this instruction was proper in the circumstances. Appellee’s argument is that appellant’s decedent created an emergency situation which originated and continued from the time he left his wrecked automobile one mile distant from the fatal accident and that appellee was reacting to this emergency situation created by the decedent. Therefore, the appellee was not guilty of any negligence which created the emergency situation.
As previously indicated, we cannot agree that the emergency instruction is applicable in the factual situation here. The appellee’s reactions to his discovery of the decedent’s wrecked vehicle certainly did not create a continuing sudden emergency. The appellee had time to seek a telephone in the vicinity, to return to the scene of the wrecked vehicle, and to decide to seek assistance elsewhere. Thus there was no sudden emergency that caused the appellee, in the stress of the situation, to drive at a speed of 70 miles an hour with his lights dimmed.
Nor was a sudden emergency, within the meaning of the AMI instruction, involved when the appellee saw the decedent walking down the highway. Appellee was admittedly driving 70 miles per hour and first saw the decedent 50 feet from the impact point. Appellee was traveling at a rate of approximately 102.6 feet per second and had less than xh a second to react. The perception/reaction distance of a driver of a car traveling 70 miles per hour is 77 feet. Therefore, as appellee testified, he had no chance to swerve or brake his vehicle.
The basis of the sudden emergency doctrine is that the driver be in a stressful situation which dictates a quick decision as to possible courses of conduct.
The law does not require of the actor more than it is reasonable to expect of him under the circumstances which surround him. Therefore, the court and jury in determining the propriety of the actor’s conduct must take into account the fact that he is in a position where he must make a speedy decision between alternative courses of action and that, therefore, he has no time to make an accurate forecast as to the effect of his choice. (Emphasis added.)
Restatement, Second, Torts § 296 Comment (b).
The sudden emergency instruction given to the jury in the case at bar is cast in terms of “judgment. ” The driver must be aware of the danger in a situation where he has a choice of action. In Howard v. Tri-State Ins. Co., 253 Ark. 405, 486 S.W. 2d 77 (1972), we held it error for the trial court to give a sudden emergency instruction where there was “not one iota of testimony of either driver finding himself in an emergency situation and taking action accordingly.” There, neither driver perceived a situation in sufficient time to indicate an emergency and make a decision between alternative courses of action. Likewise, in the case at bar, it was physically impossible for appellee to make a decisional act after seeing the decedent. Only the instructions on comparative negligence are applicable in this factual situation.
Reversed and remanded.
Fogleman and Jones, JJ., dissent.
Uniform Table of Driver Stopping Distances, Including Perception-Reaction Distance, Am. Jur. 2d, Desk Book at 456. | [
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RAY THORNTON, Justice.
This case presents the question stice. required to conduct an analysis of the factors required for certification of a class action under the provisions of Arkansas Rules of Civil Procedure Rule 23 and to enter written findings of fact and conclusions of law when requested by a party to the litigation as provided by Arkansas Rules of Civil Procedure Rule 52. Because we conclude that the answer to this question is affirmative, and because the trial court did not enter specific findings of fact and conclusions of law reflecting an analysis required for certification of a class action, we reverse and remand to the trial court for further proceedings consistent with this opinion.
On May 8, 1997, an explosion and fire occurred at appellant BPS’s agricultural chemical packaging plant in West Helena. The fire continued to burn for several days, and three firemen lost their lives during their efforts to control the fire. One of the chemicals involved in the incident was azinphos methyl, which was supplied to BPS by appellant Micro Flo Company.
On May 9, 1997, Vickie Sheppard and Sylvester King, employees of BPS, who were performing their duties at the time of the explosion, were joined by Clarence Richardson in filing this action. They asserted that they represented “those classes of persons who have been, continue to be, and may in the future be adversely affected by the actions and omissions which are subject of this complaint.”
On February 6, 1998, the three named plaintiffs were joined by Palestine Fitzgerald and five other individuals as plaintiffs seeking certification as representatives of a class including “those persons who suffered or will suffer symptoms of exposure to toxins and/or toxic chemicals.” In addition to seeking compensatory and punitive damages for medical expenses, lost wages, and pain and suffering, the plaintiffs sought recovery for mental and emotional distress and anguish, as well as for spousal loss of consortium, lifelong medical monitoring, a pre-paid medical insurance policy for all those who may incur medical expenses in the future, and other damages to both symptomatic and asymptomatic members of the proposed class. It was estimated that there were one hundred class members in the proposed class.
On April 15, 1998, BPS filed a third-party complaint against Micro Flo Company seeking contribution and/or indemnity if BPS is found to be Hable for the explosion. On January 21, 1999, a third amended complaint was filed. This complaint named Micro Flo, as well as BPS, as a defendant. The complaint alleged that the plaintiffs represented “those classes of persons who have been, continue to be, and may in the future be adversely affected by the toxic chemicals released into the air on May 8, 1997.” The class also included “persons who suffered or will suffer symptoms of exposure to toxins and/or toxic chemicals emitted into the air as a result of the explosion at BPS, Inc” and “class members’ spouses who suffered loss of consortium.” The plaintiffs alleged that the class had 16,000 to 20,000 members. The complaint outlined the following damages: “(a) past and future medical and incidental expenses; (b) past and future pain, suffering and mental anguish; (c) past and future lost earnings and working time; (d) permanent disfigurement; (e) loss of value of all earnings and working time lost in the past and reasonably certain to be lost in the future; (f) the loss of future ability to earn and past and future home caretaking expenses; (g) loss of consortium and permanent bodily injury; (h) any other documented losses as a direct result of the explosion and release of toxic chemicals on May 8, 1997.”
On January 21, 1999, BPS filed a motion pursuant to Rule 52 of the Arkansas Rules of Civil Procedure requesting specific findings of fact and conclusions of law thereon with respect to plaintiffs’ request for class certification. On January 28, 1999, a hearing was held on plaintiffs’ request for class-action certification of their suit. At the hearing, appellees explained to the trial court that they wished to drop five of the named plaintiffs and proceed with only Richardson, King, Sheppard, and Fitzgerald as class representatives. Fitzgerald and Sheppard testified at the hearing and the deposition testimony of Richardson and King was filed for record. Dr. Phillip Goad also testified at the hearing.
On February 11, 1999, the appellants presented to the trial court their proposed findings of fact and conclusions of law. In a letter opinion dated April 14, 1999, and a subsequent order entered May 5, 1999, the trial court granted appellees’ request for class certification. It is from this order that appellants appeal, raising five points of alleged error. We reverse and remand this case to the trial court for an analysis of the factors required for certification of a class action pursuant to Rule 23 of the Arkansas Rules of Civil Procedure and for the entry of specific findings of fact and conclusions of law pursuant to Rule 52 of the Arkansas Rules of Civil Procedure.
In our review of a trial court’s decision to grant class certification, we have said that trial courts are given broad discretion in matters of class certification, and we will reverse the trial court’s ruling only when the appellant can demonstrate an abuse of that discretion. Baker v. Wyeth-Ayerst Laboratories Division, 338 Ark. 242, 992 S.W.2d 797 (1999); SEECO, Inc. v. Hales, 330 Ark. 402, 954 S.W.2d 234 (1997); Mega Life & Health Ins. v. Jacola, 330 Ark. 261, 954 S.W.2d 898 (1997).
Rule 23 of the Arkansas Rules of Civil Procedure details the requirements for a class-action suit. It states:
(a) One or more members of a class may sue or be sued as representative parties on behalf of ail only if (1) the class is so numerous that joinder of all members is impracticable, (2) there are questions of law or fact common to the class', (3) the claims or defenses of the representative parties are typical of the. claims or defenses of the class, and (4) the representative parties will fairly and adequately protect the interests of the class.
(b) An action may be maintained as a class action if the prerequisites of subdivision (a) are satisfied, and the court finds that the questions of law or fact common to the members of the class predominate over any questions affecting only individual members, and that a class action is superior to other available methods for the fair and efficient adjudication of the controversy. As soon as practicable after the commencement of an action brought as a class action, the court shall determine by order whether it is to be so maintained. An order under this section may be conditional and it may be altered or amended before the decision on the merits.
Id. We have reviewed the provisions of Rule 23 on numerous occasions and have held that in order for a class-action suit to be certified six factors must be met. Specifically, the party seeking certification must establish: (1) numerosity; (2) commonality; (3) predominance (4) typicality; (5) superiority; and (6) adequacy. See Mega Life, supra. When we review a class-action certification, we will review the trial court’s analysis of the factors upon which certification must be based. Specifically, we have held that:
[W]hether to certify a class “is not ‘whether the plaintiff or plaintiffs have stated a cause of action or will prevail on the merits, but rather whether the requirements of Rule 23 . . . are met.’ ” As we observed, “it is totally immaterial whether the petition will succeed on the merits or even if it states a cause of action. ...” Id. “[A]n order denying or granting class certification is separate from the merits of the case.”
Direct Gen. Ins. Co. v. Lane, 328 Ark. 476, 944 S.W.2d 528 (1997) (citing Farm Bureau Mutual Ins. Co. v. Farm Bureau Policy Holders, 323 Ark. 706, 918 S.W.2d 129 (1996)).
Although we do not delve into the merits of the underlying claims in a potential class-action case, we will review the trial court’s order to determine whether the requirement of Rule 23 are satisfied. The first requirement of class certification is “that the class is so numerous that joinder of all members is impractical.” Ark. R. Civ. P. 23(a)(1). In Cheqnet Systems, Inc. v. Montgomery, 322 Ark. 742, 911 S.W.2d 956 (1995), we held that the exact size of the proposed class and the identity of the class members need not be established for the court to certify a class, and the numerosity requirement may be supported by common sense. We have not adopted a bright-line rule to determine how many class members are required to satisfy the numerosity requirement. Mega Life, supra (citing Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991) (approving a class of several thousand claimants)); International Union of Elec., Radio, & Mach. Workers v. Hudson, 295 Ark. 107, 747 S.W.2d 81 (1988) (declaring that “at least several hundred” class members were sufficient); Cooper Communities, Inc. v. Sarver, 288 Ark. 6, 701 S.W.2d 364 (1986)(holding that 184 potential class members were enough); City of North Little Rock v. Vogelgesang, 212 Ark. 390, 619 S.W.2d 652 (1981) (rejecting a class of only seventeen potential plaintiffs)).
We note that in the present case appellants do not challenge the number of potential class members, but they do argue that the number of class members cannot be determined because the class definition is too vague.
Rule 23(a)(2) of the Arkansas Rules of Civil Procedure requires a determination by the trial court that “there are questions of law or fact common to the class.” See also, Mega Life, supra. A review of our case law reveals that this requirement is case-specific. Professor Newberg’s treatise on class actions explains that:
[T]he common question prerequisite is interdependent with the notion of joinder impracticability under Rule 23(a)(1). Consideration of the common question issue requires an answer to the question: Common to whom?
Rule 23(a)(2) does not require that all questions of law or fact raised in the litigation be common. The test or standard for meeting the rule 23(a)(2) prerequisite is ... that is there need be only a single issue common to all members of the class.... When the party opposing the class has engaged in some course of conduct that affects a group of persons and gives rise to a cause of action, one or more of the elements of that cause of action will be common to all of the persons affected.
Herbert B. Newberg, Newberg on Class Actions, § 3.10 (3d ed. 1993). The trial court must determine what elements in a cause of action are common questions for the purpose of certifying a class.
Arkansas Civil Procedure Rule 23(a)(3) requires that “the claims or defenses of the representative parties are typical of the claims or defenses of the class.” Id. This requirement was discussed in detail in Direct General Insurance, supra. We stated that:
[A] representative’s claim is typical of the class members’ claims under' Rule 23(a)(3) if the representative’s claim arises from the same wrong allegedly committed against the class. Quoting a passage from Professor Newberg’s treatise on class actions, we said:
Typicality determines whether a sufficient relationship exists between the injury to the named plaintiff and the conduct affecting the class, so that the court may properly attribute a collective nature to the challenged conduct. In other words, when such a relationship is shown, a plaintiff’s injury arises from or is directly related to a wrong to a class, and that wrong includes the wrong to the plaintiff. Thus, a plaintiff’s claim is typical if it arises from the same event or practice or course of conduct that gives rise to the claims of other class members, and as if his or her claims are based on the same legal theory. When it is alleged that the same unlawful conduct was directed at or affected both the named plaintiff and the class sought to be represented, the typicality requirement is usually met irrespective of varying fact patterns which underlie individual claims.
Summons v. Missouri Pac. R.R., 306 Ark. at 121, 813 S.W.2d at 243 (quoting Herbert B. Newberg, Newberg on Class Actions, § 3.13, at pp. 166-67 (2d ed. 1985)).
Direct General, supra. We have also held that a class certification is not appropriate when a putative class representative is subject to unique defenses that threaten to become the focus of the litigation. See BNL Equity Corp. v. Pearson, 340 Ark. 351, 10 S.W.3d 838 (2000).
We note that in this case the named representatives do not claim to represent the firemen who lost their lives. It is unclear whether the two proposed class representatives who were BPS employees at the time of the accident, and who may be entitled to workers’ compensation benefits, may be subject to certain defenses that would impair them from acting as class representatives. We further note that the trial court may need to address whether any of the other named class representatives are subject to unique defenses which could become the focus of the litigation when it is evaluating whether the proposed class satisfied the Rule 23 requirement for typicality. An analysis of this factor is essential.
Arkansas Civil Procedure Rule 23(a)(4) states that a trial court must determine whether the class representatives “will fairly and adequately protect the interests of the class.” Id. We have previously explained that the three elements of this requirement are that: (1) the representative counsel must be qualified, experienced and generally able to conduct the litigation; (2) there be no evidence of collusion or conflicting interest between the representative and the class; and (3) the representative must display some minimal level of interest in the action, familiarity with the practices challenged, and ability to assist in decision making as to the conduct of the litigation. Mega Life, supra. We have noted that the “adequacy of representation” element is satisfied if the representatives display a minimal level of interest in the action, familiarity with the challenged practices, and ability to assist in litigation decisions. See Chequet, supra. We have also held that absent a showing to the contrary, we will presume that the representative’s attorney will vigorously and competently pursue the litigation. Mega Lfe, supra. Finally, a trial court may also consider it necessary, in its analysis of this requirement for class certification, to resolve any questions of reluctancy on the part of named class representatives to comply with requirements of disclosure or participation in discovery requests during the pendency of the litigation.
In the present case, we note that in its order the trial court stated, “the representative parties with the possible exception of Ms. Sheppard would appear to be able to fairly and adequately protect the interests of the class.” An analysis of this case should articulate the reasons upon which the trial court determined that the representative parties meet the requirements of Rule 23(a)(4).
Arkansas Civil Procedure Rule 23(b) requires that “the questions of law or fact common to the members of the class predominate over any question affecting only individual members.” Id. We have held that the starting point for our examination of the predominance issue is whether a common question of law or fact exists in the case for all class members. BNL, supra. The next issue is whether this question predominates over individual questions. Id. We have also noted that when deciding whether the common questions of law or fact predominate over other questions affecting only individual members, we do not merely compare the number of individual versus common claims. Baker, supra. Instead, we must decide if the issues common to all plaintiffs “predominate over” the individual issues, which can be resolved during the decertified stage of a bifurcated proceeding. See Seeco, supra; Mega Life, supra. In Baker, a class-action case involving diet drugs which caused injuries to the patients taking the drugs, we reviewed the predominance requirement in the context of a mass tort action. We held that:
[M]ass-tort actions, however, present unique certification problems because they generally involve numerous individual issues as to the defendant’s conduct, causation, and damages. Courts, however, have recently distinguished between two different types of mass-tort actions: 1) mass-accident cases where injuries are caused by a single catastrophic event occurring at one time and place; and 2) toxic-tort or products-liability cases where the injuries are a result of a series of events occurring over a considerable length of time and under different circumstances. See JAMES W. MOORE, Moore’s Federal Practice § 23.47[4] (3d. ed. 1999); Herbert B. Newberg & Alba Conte, Newberg on Class Actions§§ 17.01 to 17.06 (3d ed. 1992); Charles Alan Wright et al., Federal Practice and Procedure § 1783 (2d ed. 1986). Due to the enormity and complexity of the individual issues presented by toxic-tort and products-liability cases, class certification is more common in mass-accident cases than in toxic-tort or products-liability case. See JAMES W. MOORE, supra § 23.47[4] (citing numerous products-liability and toxic-tort cases where class certification was denied); Herbert B. Newberg & Alba Conte, supra § 17.22 (citing several products-liability cases involving tetracycline, bendectin, and DES where class certification was denied). In this regard, the Sixth Circuit has admonished that a court should “question the appropriateness of a class action” where “no one set of operative facts establishes liability, no single proximate cause equally applies to each potential class member and each defendant, and the individual issues outnumber common issues.” Sterling v. Velsicol Chemical Corp., 855 F.2d 1188 (6th Cir. 1988).
Likewise, we have been more inclined to approve class certification in mass-accident cases than in products-liability or toxic-tort cases. For example, we allowed class certification in the mass-accident case of Summons v. Missouri Pac. R.R., 306 Ark. 116, 813 S.W.2d 240 (1991). In Summons, several thousand people were evacuated from their homes when a train owned by Missouri Pacific overturned and released chemicals into the area. Id. The plaintiffs alleged that Missouri Pacific was willfully and wantonly negligent and strictly liable for shipping ultra hazardous products. Id. We held that class certification was proper because the common issues of the defendant’s conduct, whether the chemicals were ultra hazardous, and causation predominated over and could be resolved prior to addressing the individual and less difficult issues of damages and injuries. Id.
Baker, supra.
In Baker, we also cited with favor the United States Supreme Court’s language from Amchem Products, Inc. v. Windsor, 521 U.S. 591, 117 S. Ct. 2231 (1997) regarding the predominance requirement of Rule 23(b). We noted:
In Amchem, the plaintiffs filed a class action on behalf of possibly millions of people who were exposed to asbestos. Id. The plaintiffs argued that class certification was proper because all members of the class had been exposed to asbestos products supplied by the defendants. Id. The Court responded as follows:
Even if Rule 23 (a)’s commonality requirement may be satisfied by that shared experience, the predominance criterion is far more demanding. Given the greater number of questions peculiar to the several categories of class members, and to individuals within each category, and the significance of those uncommon questions, any overarching dispute about the health consequences of asbestos exposure cannot satisfy the Rule 23(b)(3) predominance standard.
Id. (emphasis added).
The Court further opined that class certification was improper because the class members:
were exposed to different asbestos-containing products, for different amounts of time, in different ways, and over different periods. Some class members suffer no physical injury or have only asymptomatic pleural changes, while others suffer from lung cancer, disabling asbestosis, or from mesothelioma.... Each has a different history of cigarette smoking, a factor that complicates the causation inquiry.
Id. (quoting the Third Circuit’s earlier decision in this same case, Georgine v. Amchern Products, Inc., 83 F.3d 610 (3rd Cir. 1996) (emphasis added)). Finally, the Court called for caution in the certification of mass-tort cases when “individual stakes are high and disparities among class members great.” Id.
Baker, supra.
Finally, Rule 23(b) of the Arkansas Rules of Civil Procedure also requires that a class action be superior to other available methods for the fair and efficient adjudication of the controversy. See, Seeco, supra. We have held that the superiority requirement is satisfied if class certification is the more “efficient” way of handling the case, and it is fair to both sides. Baker, supra. Where a cohesive and manageable class exists, we have held that real efficiency can be had if common, predominating questions of law or fact are first decided, with cases then splintering for the trial of individual issues, if necessary. Seeco, supra; See also Summons, supra. We further note that when a trial court is determining whether class-action status is the superior method for adjudication of a matter it may be necessary for the trial court to evaluate the manageability of the class. See BNL, supra, (holding after a review of the trial court’s well-reasoned twenty-four-page order that a class action was properly certified). See also The Commonwealth of Puerto Rico v. Emily, 158 F.R.D. 9 (P.R. 1994) (holding that a proposed class was unmanageably broad).
Remaining mindful of our well-established rules surrounding class-action certification, we turn to appellants’ arguments on appeal. Appellants contend that the trial court abused its discretion when it certified this case as a class action. Specifically, appellants argued that the proposed class: failed to meet the typicality requirement of Rule 23(a)(3); failed to establish that the representative parties would fairly and adequately represent the interest of the class pursuant to Rule 23(a)(4); failed to meet the predominance requirement of Rule 23(b); and failed to establish that a class action was the superior method for adjudication of this case.
Appellants also alleged that this case should be reversed and remanded because the trial court failed to make specific findings of fact and conclusions of law pursuant to Rule 52 of the Arkansas Rules of Civil Procedure. Appellees responded to this argument by contending that a motion for class certification is merely a motion and as such is not subject to Rule 52. However, appellees contention is misplaced. In Mega Life Health Ins. Co. v. Jacola, 330 Ark. 261, 954 S.W.2d 898 (1997), we addressed an argument identical to the one now being raised by appellants. Specifically, we held:
First, Mega asserts that we must reverse the certification order because the trial court failed to make specific findings regarding the existence of the Rule 23(b) requirements of predominance and superiority. This issue is governed by Ark. R. Civ. P. 52(a) which states that “findings of fact and conclusions of law are unnecessary on decisions of motions under these Rules,” but that the court shall enter such specific findings and conclusions upon the request of a party. It does not appear from the abstract that Mega ever requested that the court make such specific findings in regard to the predominance and superiority requirements of Rule 23(b).
Moreover, Rule 52(b) states that upon a motion of a party made no later than ten days after the entry of judgment, the court may amend its findings of fact or make additional findings. Thus, Mega had ten days after the order of certification was entered to ask the trial court to make additional findings regarding the Rule 23(b) elements. Mega, however, failed to make such a request. Because Mega failed to request specific findings in regard to the Rule 23(b) elements either prior to or after the entry of the order of certification, we hold that it has waived this issue on appeal.
Id. (internal citations omitted).
In this case, a request for specific findings was made pursuant to Arkansas Rule of Civil Procedure 52, which states in relevant part:
[I]f requested by a party, in all contested actions tried upon the facts without a jury, the court shall find the facts specially and state separately its conclusions of law thereon....
Id. This rule has been interpreted to mean that “if findings under Rule 52(a) are timely requested, the trial court is required to make specific findings of fact and conclusions of law and to file the same with the clerk of the trial court so that such findings may be made part of the record.” McWhorter v. McWhorter, 70 Ark. App. 41, 14 S.W.3d 528 (2000). Our court of appeals has held that this “rule does not place a severe burden upon the trial judge, for he needs only to make brief, definite, pertinent findings and conclusions upon the contested matters.” McClain v. Giles, 271 Ark. 176, 607 S.W.2d 416 (1980) (emphasis added) (a case that was reversed and remanded because the appellant requested Rule 52 findings and the trial court failed to set forth findings of fact, which it relied on for calculation of appellant’s child-support obligation).
We note that on January 21, 1999, four months before the trial court’s May 5th order, appellants filed a motion requesting specific findings and conclusions. The motion stated:
Pursuant to Rule 23 and Rule 52 of the Arkansas Rules of Civil Procedure, defendant BPS, Inc. requests specific findings of fact and conclusions of law thereon with respect to plaintiffs’ request for class certification, the requirements for class certification in Rule 23(a)and (b), and any order entered by the Court granting or denying class certification.
Additionally, on February 11, 1999, appellants BPS and Micro Flo submitted to the trial court fourteen pages of proposed findings of fact and conclusions of law. In response to appellants’ motions, the trial court filed the following letter opinion:
The trial court finds that plaintiffs have shown that the proposed class of plaintiffs is so numerous that joinder of all members is impracticable.
The plaintiffs and the proposed class of plaintiffs will be seeking damages from defendants because of the fire and explosion at the BPS plant on or about May 8, 1997, and the alleged release of chemicals into the air. Almost all of the class will be seeking damages as a result of an alleged exposure to chemicals released from the plant as a result of the explosion. The court recognizes that the damage claims of the individuals of the class will differ. The Court is of the opinion that there are questions of law or fact common to the class.
The claims of the representative parties appear to be typical of the claims of the class in that they all would appear to be claiming damages as a result of the fire and explosion and release of chemicals into the air. It may be that some will not be able to participate in the class or be a representative of the class if it is determined that their alleged injury arose out of and in the course of their employment and is covered by Workers Comp. However, this should not prevent there being questions of law and fact common to those not employed by defendants or not claiming damages as a result of said employment.
The representative parties with the possible exception of Ms. Sheppard would appear to be able to fairly and adequately protect the interest of the class.
The court finds that the prerequisites of Rule 23(a) have been met.
The court finds that in accordance with Rule 23(b) that the questions of law or fact common to the members of the class predominate over those questions affecting only individual members. The court finds that a class action is superior to other available methods for a fair and efficient adjudication of all the actual and potential claims resulting from the occurrence.
We conclude that this order does not meet the mandatory requirements of Rule 23. Specifically, evaluating the trial court’s order we cannot be certain of: (1) the number of members in the class which the trial court used to determine whether the numerosity requirement was met (estimated size of the class ranged from 100 members to 20,000 members); (2) what the trial court found to be the “common questions of law or fact”; (3) what claims the trial court found to be held by the representative parties which would be “typical” of the claims of the proposed class and whether such claims would be subject to defenses not applicable to all members of the class; (4) why the named plaintiffs’ claims predominate over claims held by individual class members; (5) why the trial court found that the representative parties would fairly and adequately represent the class; or (6) why the trial court found that a class action is “superior to other available methods for a fair and efficient adjudication of all the actual and potential claims.”
Here, the trial court’s order does not provide the parties or this court with an analysis of the requirements of Rule 23 or specific factual findings of fact or conclusions of law pursuant to Rule 52. Because it failed to comply with these requirements we conclude that the trial court has abused its discretion in certifying this case for class-action status. For a class action to serve the purpose of an efficient and fair means of resolving claims arising out of the same circumstances, these issues must be analyzed Accordingly, we reverse and remand this case to the trial court for analysis and findings as required by Rule 23 and Rule 52 of the Arkansas Rules of Civil Procedure.
Reversed and remanded.
Glaze, J., concurs. | [
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John A. Fogleman, Justice.
Appellants Charles and Modelle Dennison seek review of an order of the Faulkner Chancery Court holding them in contempt of court for violation of an order of the court relating to the custody of their three-year-old granddaughter. The order, insofar as material, reads as follows:
1. ****Charles and Modelle Dennison failed to comply with the Court’s order of reasonable visitation in that they failed to return the above named child after a three (3) hour visitation on December the 11th, 1973.
2. That said Charles and Modelle Dennison aided and abetted **** Clinton Eugene Dennison, their son, in allowing him to take Jessica Lynn Dennison outside the boundaries of the Court and the border of the State of Arkansas.
3. That the Court doth find a deliberate violation of its order of December the 11th, 1973 and that Charles and Modelle Dennison are hereby adjudged to be in contempt of this Court in that they aided and abetted one Charles Eugene Dennison from returing Jessica Lynn Dennison after the reasonable visitation had been awarded previously by this Court. The original order of December the 11th, 1973 was directed towards Charles and Modelle Dennison in that they were to comply with all Court orders directed towards Clinton Eugene Den-nison.
4. That the Court finds and hereby levies a fine of $.100 to be placed upon Charles and Modelle Dennison jointly. Also, a $100 a day fine, per day, until said child, Jessica Lynn Dennison is returned to the jurisdiction of this Court and to the above named plaintiff, Pearlie Mae Dennison. That said Charles and Modelle Dennison are io re nain in jail until said child is returned to this Court and that in addition to the time they are in jail an additional three (3) days is to be served by Charles and Modelle Dennison.
We first dispose of the contention of appellee that this appeal should be dismissed because review of such an order may be had only upon certiorari. Appellee is correct as to the mode of appellate review. Johnson v. Johnson, 243 Ark. 656, 421 S.W. 2d 605. This court in its supervisory capacity, however, has always been rather liberal in elevating substance above form in order to deal with a particular proceeding in a manner consistent with justice in order to expeditiously dispose of issues, when it can be done without prejudice to one not immediately before the court and there is no statutory or constitutional impediment. To this end an appeal may, in the discretion of this court, be treated as a petition for certiorari, particularly when the entire record of the proceeding is before us. Bridges v. Arkansas Motor Coaches, 256 Ark. 1054, 511 S.W. 2d 651 (1974); Whorton v. Hawkins, 135 Ark. 507, 205 S.W. 901. The entire record is before us. We find no statutory or constitutional impediments to our treating this matter on certiorari. We do not see how doing so could possibly result in prejudice to anyone not before this court. The motion to dismiss is denied, because it seems to us that the ends of justice require that we expeditiously dispose of the issues raised by appellants. We will therefore treat this appeal as a petition to quash the order on certiorari. The appellants will hereinafter be referred to as petitioners and appellee as respondent.
We may just as quickly dispose ol! the contention of petitioners that the chancery court was without jurisdiction over them because they were not parties to the divorce suit in which temporary custody of their granddaughter was awarded to her mother and reasonable visitation allowed her father, their son. They admit that they were present at the hearing which resulted in the entry of the order. At the inception of the hearing at which the order was entered and in the presence of petitioners, the chancellor emphatically announced that he would jail everybody connected with the case if he had any trouble on either side, “including relatives, kinsfolk, everybody else” and would fine and put on the county farm anyone who violated his order. At the conclusion of the hearing, the chancellor forcefully cautioned that he did not expect “any moré running off or snatching the child” or anything of that sort. Petitioners’ attorney had admitted in open court at this hearing that they were parties to the proceeding. The chancellor directed petitioners’ attorney, who was their son’s attorney in the divorce suit, to explain the remark to his clients. A certified copy of an order awarding custody to the mother on her ex parte application and fixing the date of the hearing had directed the sheriff to accompany the mother to obtain custody and to serve a certified copy of the order on petitioners. Although no return showing service of this order on them appears in the record, Chárles Den-nison testified at the contempt hearing that he was present at the custody hearing because he and his wife and his son had been made parties defendant, that he fully understood what the court said on that date, and that the remarks were directed to him and his wife. One who has full knowledge of a court order and its import, as petitioners did, cannot flout it with impunity. Hickinbotham v. Williams, 228 Ark. 46, 305 S.W. 2d 841; See also Whorton v. Gaspard, 240 Ark. 325, 399 S.W. 2d 680; Hudkins v. Arkansas State Board of Optometry, 208 Ark. 577, 187 S.W. 2d 538. The petitioners were clearly subject to the jurisdiction of the chancery court in the contempt proceeding.
Petitioners contend that contempt on their part was not proved by a preponderance of the evidence. This presents a problem of some apparent complexity. The argument on behalf of petitioners is based wholly upon their contention that the evidence preponderates in their favor, even when they concede that the court may have punished them for both civil and criminal contempt. They say that, since the evidence preponderates in their favor, there could not have been that degree of proof required to sustain a finding of criminal contempt. They are correct as to the degree of proof required in the trial court, but they overlook the difference in appellate review of the evidence on certiorari, not only as distinguished from its consideration by the trial court, but as between the two types of contempt. The distinction between the two and the overtones of each inherent in a child custody proceeding growing out of a divorce action were clearly recognized by the chancellor. See Songer v. State, 236 Ark. 20, 364 S.W. 2d 155.
In cases of civil contempt the enforcement of the rights of private parties to litigation is the objective. On the other hand, the primary reason for punishment for criminal contempt is the necessity for maintaining the dignity, integrity and authority of, and respect toward, courts and the deterrent effect on others is just as important as the punishment of an offender. Hickinbotham v. Williams, 228 Ark. 46, 305 S.W. 2d 841; Lee v. State, 102 Ark. 122, 143 S.W. 909; Turk v. State, 123 Ark. 341, 185 S.W. 472. The two purposes merge in a case such as this. Songer v. State, supra.
The distinction and the reasons therefor have been discussed by us in Blackard v. State, 217 Ark. 661, 232 S.W. 2d 977, as well as in Songer. In Songer we said:
*****jt jg not qUestioneci that punishment for civil contempt will be upheld by this Court unless the order of the trial court is arbitrary or against the weight of the evidence. However, it is not necessary for us to hold the petitioner was found guilty of only civil contempt in order to sustain the trial court. We think the trial court should be sustained even if the petitioner were guilty of criminal contempt.
After stating the rule of appellate review set out in Blackard, we said:
Weighing the testimony under the above rules, we find there is substantial evidence to support the order of the trial court.
In Blackard, we had said:
One of the reasons for the distinction between criminal contempt and civil contempt is because it is generally held that in criminal contempt proceedings the proof must be beyond a reasonable doubt. In the case at bar the proceedings involve criminal contempt; and the trial court held that the proof had to be beyond a reasonable doubt, just as in a criminal case. This ruling was cor-rcct *****
On review by this Court in such proceedings by cer-tiorari, we do not try the criminal contempt case de novo, despite any such language so intimating as contained in Jones v. State, 170 Ark. 863, 281 S.W. 663. Rather, we review the evidence just as we would in an appeal in any criminal case. The trial court in the first instance, in a criminal contempt proceeding, must find the cited person guilty beyond a reasonable doubt. Then, on certiorari proceedings this Court reviews the record to determine whether the evidence, when given its full probative force, is sufficient to sustain the finding of the trial court. *****
*****As previously stated, we review the evidence in this case just as we would an appeal in an ordinary criminal case, that is, to determine whether the evidence, when given its full probative force, is sufficient to sustain the finding of the trial court.
Of course, in a criminal case, we do not consider whether the guilt of an accused is proven beyond a reasonable doubt, since the test on appellate review is whether there is any substantial evidence to support the fact finder’s verdict. Pharr v. State, 246 Ark. 424, 438 S.W. 2d 461; Morrow v. Roberts, 250 Ark. 822, 467 S.W. 2d 393; Graves v. State, 236 Ark. 936, 370 S.W. 2d 806. In Graves we said: In a criminal case we do not disturb the fact finder’s findings on fact issues unless there is no substantial evidence to support them. Inklebarger v. State, 252 Ark. 953, 481 S.W. 2d 750.
Upon the conflicting testimony the issues of fact were properly submitted to the jury. The appellants are in error in arguing that the State’s failure to prove its case beyond a reasonable doubt entitles them to a reversal. The jury must be convinced of the accused’s guilt beyond a reasonable doubt, but there is no requirement that the members of this court be similarly persuaded by the proof. Here the test is that of substantial evidence. If the verdict is supported by such proof we are not at liberty to disturb the conviction, even though we might think it to be against the weight of the evidence. Fields v. State, 154 Ark. 188. 241 S.W. 901.
Even though civil contempt findings are reviewed to determine where the preponderance of the evidence lies, we only examine the record for substantial evidence in criminal contempt cases and affirm a judgment finding criminal contempt unless we find no substantial evidentiary support. If we did not make this quite clear in Blackard and Songer we set the matter at rest in Morrow v. Roberts, supra and Vandergriff v. State, 239 Ark. 1119, 396 S.W. 2d 818. We must be able to say that there was no substantial evidence to connect the alleged contemnor with the acts charged before we can quash the order on certiorari. See Whorton v. Gaspard, 240 Ark. 325, 399 S.W. 2d 680. It must also be remembered that, as in criminal cases, circumstantial evidence is substantial evidence when it is properly connected and does more than arouse suspicion. See Songer v. State, supra; Whorton v. Gaspard, supra; Ledford v. State, 234 Ark. 36, 351 S.W. 2d 425.
The chancellor’s findings and the punishment mated out, particularly when considered along with his opening and closing admonitions, clearly indicate that he considered the proceeding as one for both civil and criminal contempt in the light of such cases as Songer. The $100 fine and three days’jail sentence, characteristic of punishment for criminal contempt, were in addition to the civil contempt penalty obviously calculated to bring about compliance with the custody order, i.e., the fine of $100 per day and a commitment to jail until the child was returned to her mother.
Inasmuch as we are unanimously of the view that the order must be quashed, insofar as the alleged civil contempt is concerned, as clearly against the preponderance of the evidence, we will summarize the evidence only insofar as necessary to determine whether there was any substantial evidence to support the finding of criminal contempt. In doing this, we view it as we would in an ordinary criminal case, i.e., in the light most favorable to the court’s findings, drawing all inferences and resolving all conflicts against petitioners. Graves v. State, 256 Ark. 117, 505 S.W. 2d 748 (1974); Elser v. State, 243 Ark. 34, 418 S.W. 2d 389.
Pearlie Maye Dennison and Clinton Eugene Dennison, son of petitioners, were married February 7, 1970. Jessica Lynn, aged three at the time of the custody hearing, was born to that marriage. Pearlie Maye had two children by a previous marriage. In December of 1971, she left Jessica Lynn with petitioner Modelle Dennison and her two other children with their maternal grandmother. Her purpose in doing so was to go to Alaska to aid in getting the son of petitioners out of jail. She wrote and signed a note dated December 19, 1971, stating that she had placed Jessica Lynn in the custody of the senior Dennisons, because of ill feelings between her mother and Mrs. Modelle Dennison. It read:
“I, Pearl Dennison leave my Daughter, Jessica Lynn Dennison in the custody of Mr. and Mrs. Charles Den-nison.
In the event anything should happen to myself, she shall remain in their custody.”
Pearlie May Dennison had understood that her husband would be placed in her custody or otherwise released upon her arrival in Alaska, but this did not occur. She related that it took her until February, 1972 to get him out of jail, that they obtained jobs but their employers failed to pay them, that the two separated, that she had undergone surgery, and that she had been unable to come back to get the baby until March, 1973. In the interim her mother supported her while she saved money for a plane ticket to return. When she did, she found that Jessica Lyrn had been taken to Louisiana. Petitioners did not want her to see the child when she got there and Modelle Dennison struck her on the back of the head when she attempted to hold the baby while visiting her at petitioners’ home.
On November 26, 1973, Pearlie Maye filed suit for divorce in which she sought custody of Jessica Lynn. The ex parte order mentioned earlier was issued the following day. On December 11, 1973, the temporary custody order was entered. Immediately after this hearing, the Dennisons (father and grandparents) picked up the child for a three-hour visitation from 5:00 p.m. to 8:00 p.m. The mother’s con cern about the 8:0U p.m. termination was attributed to the fact that she put this child and her two others to bed at that hour. She denied that the baby was sick, as petitioners contend, or had a high fever. She attributed the child’s “runny nose” to the fact that the weather had just turned cold. The mother of the child stated that Mrs. Dennison, Sr. drove the car to her house when the child was picked up because her son, the child’s father, did not have a driver’s license and “she absolutely will not let him use any of the vehicles around the house.”
Petitioner, Charles Dennison, admitted that as soon as they reached his home with the child, he told his son to take the child to the doctor immediately to- get a statement from the doctor. The elder Dennison wanted the son to see “the welfare” the next day and have the doctor find out “just how sick she is,” hoping to gain some advantage for the son at the next hearing. He said he found that the son had taken the child to a doctor in Louisiana when he “called down there” and learned “he took her to a doctor as soon as he got to his place.” He knew that his son had been in trouble “with the law” previously. Sheriff Martin, a character witness called by petitioners, testified upon inquiry by their attorney that the son’s reputation was “not too good.”
Petitioner Modelle Dennison “guessed” that she left the keys in the car her son used in taking the child away, and said she saw him drive it out the driveway. About 8:20 p.m., she called her attorney, who was then her son's attorney, to advise him that the son had taken the child to a doctor, “in case anything came up.”
It is true that there are conflicts in the testimony here and that conflicting inferences might have been drawn. Yet, every presumption must be indulged in favor of the court’s judgment. Davies v. State, 73 Ark. 358, 84 S.W. 633. When there are conflicts in the testimony, it is our duty to give the same force to the findings of the trial court in contempt proceedings as we do in other cases when there is a conflict in the testimony. Ex Parte Winn, 105 Ark. 190, 150 S.W. 399.
Perhaps there is no case in which the court’s observation of the parties, and their demeanor and conduct, including their manner of speaking and tone of voice, their facial expressions and body movements, can be more important than on a charge of contempt, particularly criminal contempt, of which attitudes of the alleged contemnor can be such an integral part. When we accord due deference to the superior position of the chancellor, we must resolve all inferences in favor of his finding. We must say that the child was not sick, but only had a runny nose, just as many other children had at that season, according to her mother. The mother’s testimony in this regard must be taken as corroborated by the high-sounding name, “upper respiratory infection”, which may be used to describe a cold or “running nose.” See 2 Gray’s Attorney’s Textbook of Medicine, 37-2 § 37.01. We must say that the mother permitted her son to use the car he had not been previously permitted to drive to take the child away, and that the parents were not motivated by concern for the baby’s well being but were endeavoring to gain an advantage for their son in the battle for custody. How did the grandmother know at 8:20 p.m. that her son nad not returned the child to its mother by 8:00 p.m., or anticipate that something might come up about the failure, if she was ignorant and innocent of any violation of the terms of the visitation? The grandfather certainly knew how to locate his son and grandchild to “learn” about the trip to the Louisiana doctor.
When all the circumstances are considered, we cannot say that there was no substantial evidence to support the finding of criminal contempt. Whether the idea of taking the child outside the jurisdiction of the court originated with petitioners or their son is immaterial, for they are guilty of contempt if they maintained in motion contemptuous conduct originated by him. Bates v. State, 210 Ark. 652, 197 S.W. 2d 45. This they did by aiding and assisting him, if reasonable inferences to be drawn from the testimony are drawn in favor of the court’s findings.
When there are mitigating circumstances and the ends of justice can be adequately sustained by the payment of a fine and the serving of some part of a jail sentence, it has been our practice to modify the judgment by reducing the punishment imposed. See Garner v. Amsler, 238 Ark. 34, 377 S.W. 2d 872; Pace v. State, 177 Ark. 512, 7 S.W. 2d 29; Baker v. State, 177 Ark. 13, 5 S.W. 2d 337; Lockett v. State, 145 Ark. 415, 224 S.W. 952; Poindexter v. State, 109 Ark. 179, 159 S.W. 197. There are mitigating circumstances here.
These grandparents had the responsibility for the child for most of her life, which could be calculated to have produced a genuine concern on their part for her welfare. Even though the mother made an explanation for failing to reclaim custody sooner, there is still reason to doubt that she was always motivated by a normal concern for her baby’s welfare during her prolonged absence. There seems to have been a Louisiana decree purporting to award custody to their son. The child was taken to a doctor upon his arrival in Louisiana. The petitioners were immediately committed to jail at the conclusion of the hearing on the citation. They remained in jail until released on bail by order of this court entered the next day. They must have remained in jail at least overnight. In view of these circumstances and our reversal of the civil contempt feature of the chancery court’s order, we are not convinced that the ends of justice require that petitioners be again confined to jail on the criminal contempt conviction. Accordingly, we reduce the jail sentence to the time served.
As thus modified, that part of the chancery court’s order holding petitioners in criminal contempt is sustained, but that part holding them in civil contempt is quashed. | [
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